UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Villar
v. Civil No. 15-cv-270-LM Opinion No. 2016 DNH 138 Federal Bureau of Investigation et al.
O R D E R
Richard Villar, a prisoner, brings this suit pursuant to
the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”),
challenging the refusal of the Federal Bureau of Investigation
to disclose certain documents and information that he requested
pursuant to that statute.1 Before the court are several motions,
including:
Defendants’ motion to dismiss Villar’s purported
constitutional tort claims (doc. no. 15);
Villar’s motion for a subpoena duces tecum (doc. no.
20); and
Villar’s motion to amend his complaint (doc. no. 29).2
1 In addition to the Federal Bureau of Investigation (“FBI”), Villar names David M. Hardy, Section Chief of the FBI’s Records Management Division, and FBI Special Agent Brian Keefe as defendants in this action.
2 Defendants also filed a motion to extend the time to object to Villar’s motion to amend the complaint (doc. no. 31). In addition, Villar filed a “motion to amend the motion
that was amended in plaintiff’s objection to the defendants’
motion to dismiss plaintiff’s claim under Rule 15(a).” Doc. no.
30. In that filing, Villar appears to seek to amend his
objections (doc. nos. 18 and 22) to defendants’ motion to
dismiss his constitutional claims. The court therefore
construes document no. 30 as an addendum to Villar’s objections
to defendants’ motion to dismiss, and considers those arguments
in ruling on defendants’ motion.
Background
I. Villar’s Conviction and Habeas Petitions
In January 2008, Villar was convicted of robbery and
conspiracy to commit armed robbery. See United States v.
Villar, No. 1:06-cr-85-PB (“Villar I”), doc. no. 120. On
remand, after Villar appealed his conviction alleging juror bias
and challenging his sentence, see United States v. Villar, 586
F.3d 76 (1st Cir. 2009), the district court denied Villar’s
motion to set aside the verdict and upheld his conviction. See
Villar I, Oral Order, June 21. Villar filed a second appeal,
Villar did not object to that motion. Defendants’ motion is granted, and the court considers herein defendants’ objection (doc. no. 32) to Villar’s motion to amend his complaint.
2 and the First Circuit affirmed his conviction. See Villar I,
doc. no. 191.
Villar then filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2255. See Villar v. United States, 11-cv-592-
PB (“Villar II”). The court denied Villar’s petition on January
20, 2012. See id. at doc. no. 5. The First Circuit denied
Villar’s request for a certificate of appealability and
terminated his appeal. See id. at doc. no. 17.
On December 3, 2013, Villar filed a second habeas corpus
petition under § 2255. See Villar v. United States, 13-cv-518-
PB (“Villar III”). The court denied the petition without
prejudice, holding that it lacked the power to consider a second
petition under § 2255 unless Villar first obtained permission
from the First Circuit authorizing him to file the petition.
See Villar III, doc. no. 3. The First Circuit denied Villar
permission to file a second or successive habeas corpus petition
on July 3, 2014. See Villar I, doc. no. 209.
On November 3, 2014, Villar filed a “Pro Se Complaint for
Set Aside the Judgment Pursuant to Fed. R. Civ. P. Rules
60(b)(3), 60(d)(3), and 60(b)(6).” See Villar v. United States,
14-cv-491-WES (doc. no. 1) (“Villar IV”). In that action,
Villar named as defendants the trial judge, the prosecuting
attorney, the investigating agent from the FBI, and his trial
counsel, alleging a conspiracy to violate his due process rights
3 at trial. As in the prior habeas petitions, Villar alleged in
his complaint in Villar IV that the government had failed to
disclose benefits, promises, and inducements provided to Shauna
Harrington, a witness who had testified against him at his
criminal trial.
On January 14, 2014, the Magistrate Judge recommended
dismissal of Villar’s action, noting that it constituted
Villar’s third successive habeas corpus petition without leave
of the First Circuit. See Villar IV, doc. no. 16. Villar
objected to the Magistrate Judge’s report and recommendation,
and filed several motions. One of Villar’s motions sought leave
to amend his complaint to add allegations that the FBI had
wrongfully denied his FOIA request for impeachment evidence
against Shauna Harrington and to add claims for violation of his
Brady/Giglio3 rights at trial, arising from the alleged failure
to disclose impeachment evidence sought in his FOIA request.
In response to Villar’s motions, the Magistrate Judge
issued an amended report and recommendation (“R&R”). See Villar
v. United States, No. 14-cv-491-WES, 2015 WL 5714706 (D.N.H. May
29, 2015). In the amended R&R, the Magistrate Judge recommended
dismissal of Villar’s complaint, noting that it “was fatally
3 See Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).
4 flawed in that it consisted entirely of a reprise of his failed
§ 2255 arguments cloaked in a 42 U.S.C. § 1983/Bivens4 action.”
Id. at *4. The Magistrate Judge held that “[h]aving twice been
denied leave, Plaintiff cannot proceed with a successive habeas
petition, whether cloaked in a § 1983/Bivens action or presented
in a Rule 60(b) motion.” Id.
The Magistrate Judge also found that the complaint was
barred by Heck v. Humphrey, 512 U.S. 477 (1994). The court
noted that “Heck mandates dismissal of any § 1983/Bivens suit
that would ‘necessarily imply’ the invalidity of a conviction;
such a claim is not cognizable under § 1983/Bivens unless and
until a challenge to the conviction is favorably resolved.”
Villar, 2015 WL 5714706, at *4. The court recommended dismissal
of the original complaint, stating “[a]t bottom, Plaintiff had
filed a third and successive § 2255 petition masquerading as a §
1983/Bivens civil action, which is clearly prohibited by 28
U.S.C. § 2244(b)(1) and (b)(3)(A).” Id.
The Magistrate Judge also recommended denying Villar’s
motion to amend his complaint as futile because the proposed
amended complaint was based on the same allegations as those set
forth in the original complaint. See id. at *5-6. The
Magistrate Judge noted that Villar’s proposed amended complaint
4 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
5 contained “new material that could be interpreted as an
administrative appeal from the FBI’s withholding of documents
from the set produced in response to his FOIA request.” Id. at
*6. The Magistrate Judge stated that “to the extent Plaintiff
wishes to file an administrative appeal in an appropriate
federal district court from the FBI’s partial denial of his FOIA
request, this recommendation does not restrict his ability to
bring a separate civil action for that claim, subject to all
defenses available to any defendant that he sues.” Id. On
September 28, 2015, the district court adopted the Magistrate
Judge’s R&R. See Villar v. United States, No. 14-cv-491-WES,
2015 WL 5725231 (D.N.H. Sept. 28, 2015).
II. Procedural Background
Villar, proceeding pro se, filed this action on July 10,
2015, asserting claims against the FBI, David Hardy, and Brian
Keefe arising out of the FBI’s alleged failure to provide
records under FOIA, as he had alleged in Villar IV. The
complaint also states that Villar is asserting claims against
defendants in their official and individual capacities under §
1983 and Bivens. In his prayer for relief, however, Villar
requests only that the court order defendants to provide copies
of records he had requested under FOIA regarding Harrington, the
witness who testified against him at his criminal trial.
6 Because Villar was pro se at the time he filed this action,
his complaint was subject to preliminary review pursuant to 28
U.S.C. § 1915A(a) and LR 4.3(d)(1).5 On preliminary review, the
Magistrate Judge found that the complaint asserted a claim under
FOIA and ordered service of the complaint on defendants. See
doc. no. 10. The Magistrate Judge did not address the
complaint’s allegations purporting to assert claims against
defendants in their official and individual capacities under §
1983 and Bivens.
Defendants now move to dismiss Villar’s complaint to the
extent it purports to assert any constitutional tort claims
against any defendant, because such claims are not cognizable
for alleged violations of FOIA. See doc. no. 15. Defendants
also argue that the court should dismiss any official capacity
claims against the individual defendants for alleged violations
of FOIA because they are not proper defendants to such a claim.
Villar objects to defendants’ motion to dismiss, and also
moves to amend his complaint. See doc. no. 29. Villar’s
proposed amended complaint adds a claim for money damages,
including punitive damages, and attorneys’ fees.6 See doc. no.
5 Villar is now represented by counsel, who filed an appearance on April 19, 2016.
6 At the time Villar filed his motion to amend, he was still proceeding pro se.
7 29-1. Defendants object on futility grounds, arguing that the
proposed amendment would be futile for the same reasons set
forth in their motion to dismiss the original complaint.
In addition, Villar has filed a motion for a “subpoena
duces tecum” (doc. no. 20), in which he asks the court to order
defendants to submit for in camera review the documents which
they withheld from his FOIA request. Defendants object.
Villar has since obtained counsel to represent him in this
litigation and filed a “supplemental response” to the
outstanding filings, in which he addressed the merits of each
pending matter. See doc. no. 36. Defendants have filed a reply
to the supplemental response (doc. no. 37), and Villar then
filed a “surreply” (doc. no. 39). The court addresses each
pending motion below.
I. Motion to Amend
Villar moves to amend his complaint under Federal Rule of
Civil Procedure 15(a) to add claims for punitive and
compensatory damages, and for attorneys’ fees.7 Defendants
object, arguing, inter alia, that amendment would be futile
7 The supplemental response improperly attempts to add additional allegations to the proposed amended complaint. The court considers only those allegations included in the proposed amended complaint. See Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014).
8 because any § 1983/Bivens claim is barred under Heck. Villar
disagrees.
In response to a motion for leave to amend a complaint,
“[t]he court should freely give leave when justice so requires.”
Fed. R. Civ. P. 15(a)(2).8 To decide if justice requires leave
to amend, the court considers all of the circumstances to
“balance [] pertinent considerations.” Palmer v. Champion
Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006). Generally, the
motion should be allowed in the absence of “any apparent or
declared reason—such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment,
[or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182
(1962).
An amendment is futile if it cannot survive the standard
applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Platten v. HG Bermuda Exempted Ltd., 437
F.3d 118, 132 (1st Cir. 2006). In considering a motion under
Rule 12(b)(6), the court assumes the truth of the properly
8 In his motion to amend, Villar appears to argue that he is entitled to amend his complaint as a matter of course under Rule 15(a)(1). That rule does not apply, however, as Villar filed his motion to amend more than 21 days after defendants filed their motion to dismiss. Rule 15(a)(2) applies to Villar’s motion.
9 pleaded facts and takes all reasonable inferences from the facts
that support the plaintiff’s claims. Mulero-Carrillo v. Roman-
Hernandez, 790 F.3d 99, 104 (1st Cir. 2015). Based on the
properly pleaded facts, the court determines whether the
plaintiff has stated “a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Here, Villar’s proposed § 1983/Bivens claim alleges that
defendants violated his due process rights both because they
failed to disclose evidence favorable to him at his criminal
trial and allowed false evidence to be admitted against him at
trial. Such a claim “effectively challenges the legitimacy of
Plaintiff’s underlying conviction.” Reeves v. United States,
No. 1:16-cv-193-NT, 2016 WL 3189671, at *2 (D. Me. May 3, 2016),
report and recommendation adopted, No. 1:16-cv-193-NT, 2016 WL
3190162 (D. Me. June 7, 2016). “The Heck Court ruled in no
uncertain terms that when a section 1983 claimant seeks ‘to
recover damages for allegedly unconstitutional conviction or
imprisonment,’ he ‘must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s
issuance of a writ of habeas corpus.’” Figueroa v. Rivera, 147
F.3d 77, 80 (1st Cir. 1998) (quoting Heck, 512 U.S. at 486–87).
Villar makes no such showing here.
10 In his surreply, Villar asserts that his claim is not
barred by Heck because he is challenging the procedures used by
defendants during his criminal trial. He argues that Heck
allows a § 1983 damages claim where a plaintiff seeks damages
“for using the wrong procedures, not for reaching the wrong
result . . . .” Heck, 512 U.S. at 482-83.
Villar’s proposed amended complaint makes no mention of
procedures used during his criminal trial.9 Rather, Villar
alleges that defendants wrongfully withheld evidence and
submitted false evidence against him, which resulted in his
conviction. Heck bars such a claim. See Skinner v. Switzer,
562 U.S. 521, 536 (2011) (holding that claims based on Brady
violations “are outside the province of § 1983”); Heck, 512 U.S.
at 479 (claims that defendants “knowingly destroyed” exculpatory
evidence and caused “an illegal and unlawful voice
identification procedure” to be used at plaintiff's trial were
barred until the conviction was reversed or otherwise declared
invalid); Evans v. Lopez, No. 98 C 2077, 2000 WL 631357, at *5
(N.D. Ill. May 12, 2000) (“Heck [] bars any claim that the
9 Examples of challenges to procedures which are not barred by Heck include a challenge to state parole procedures, such as a parole board’s consideration of harsher parole guidelines implemented after defendants’ sentences, see Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005), and a claim that a criminal defendant is entitled to a hearing prior to sentencing, McBride v. Cahoone, 820 F. Supp. 2d 623, 632 (E.D. Pa. 2011).
11 defendants falsified evidence, withheld evidence, or otherwise
corrupted the judicial process.”).
Even if Villar had alleged that submitting false evidence
and withholding exculpatory evidence during his criminal trial
were procedural defects, Heck would still bar the claim. A
claim based on a procedural defect is permitted only where the
alleged “procedural defect [does] not ‘necessarily imply the
invalidity of’” a conviction. Spencer v. Kemna, 523 U.S. 1, 17
(1998) (quoting Heck, 512 U.S. at 487). Claims based on
allowing false evidence to be used at trial and refusing to turn
over exculpatory evidence would call the validity of Villar’s
conviction into question, and are therefore barred by Heck.
See, e.g., Spuck v. Clearfield Cty., Pa., 540 Fed. App’x 73, 74-
75 (3d Cir. 2013).
As a result, the proposed amendment would be futile and the
motion to amend (doc. no. 29) is denied.10
II. Motion to Dismiss
The court turns now to defendants’ motion to dismiss
Villar’s original complaint. Defendants first move to dismiss
Villar also argues that he should be allowed to amend his 10
complaint to seek attorneys’ fees for defendants’ alleged FOIA violation. To the extent Villar “substantially prevail[s]” on his FOIA claim asserted in his original complaint, he may be entitled to recover attorneys’ fees subject to the court’s discretion, regardless of whether he specifically seeks such fees in his complaint. 5 U.S.C. § 552(a)(4)(E)(i).
12 the constitutional tort claims Villar alleges in his original
complaint. Defendants next argue that the FOIA claim should be
dismissed against Hardy and Keefe, because they are not the
proper defendants.
A. Constitutional Claims
In his supplemental response, Villar states with regard to
defendants’ motion to dismiss the original complaint:
Defendants argue that there is no Bivens claim for violation of the FOIA—Plaintiff does not plead in his complaint that there is. Plaintiff pleads in his complaint that the Bivens claim relates to another subject of the complaint, that Defendants denied him due process by withholding evidence favorable to him at trial.
Doc. no. 36 at 3. Thus, Villar makes clear that his purported
constitutional tort claims in his original complaint are based
on defendants’ alleged violation of his due process rights at
his criminal trial, the same claim he alleges in his proposed
amended complaint. For the reasons discussed above, those
claims are barred by Heck and are dismissed.
B. FOIA Claim
Defendants next contend that the court should dismiss the
FOIA claims against Hardy and Keefe because they are not proper
defendants to a FOIA claim. FOIA confers jurisdiction over the
district courts to “enjoin the agency from withholding agency
records and to order the production of any agency records
13 improperly withheld from the complainant.” 5 U.S.C. §
552(a)(4)(B). Section 552(f) defines an “agency” as “any
executive department . . . or other establishment in the
executive branch of the Government (including the Executive
Office of the President), or any independent regulatory agency.”
Id. § 552(f). Therefore, federal agencies, and not individual
officials, are the only proper defendants in a FOIA action. See
Naoum v. Chertoff, No. 06-12078-GAO, 2007 WL 335443, at *1 (D.
Mass. Feb. 1, 2007) (collecting cases); see also Bedgood v.
Mabus, No. 15cv454 WQH (BGS), 2015 WL 3647933, at *4 (S.D. Cal.
June 8, 2015) (collecting cases). For that reason, Hardy and
Keefe are not proper defendants to Villar’s FOIA claim.
Accordingly, defendants’ motion to dismiss (doc. no. 15) is
granted.
III. Motion for Subpoena Duces Tecum
Villar moves for a “subpoena duces tecum,” requesting that
the court conduct an in camera review of the documents he
alleges defendants have wrongfully withheld. Defendants object.
FOIA’s “basic purpose is to ensure an informed citizenry,
vital to the functioning of a democratic society, or, stated
more specifically, to open agency action to the light of public
scrutiny.” Church of Scientology Int’l v. U.S. Dep’t of
Justice, 30 F.3d 224, 228 (1st Cir. 1994) (internal quotation
14 marks and citations omitted). FOIA requires governmental
agencies to disclose their records to the public upon request,
unless at least one of several enumerated exemptions applies.
5 U.S.C. §§ 552(a)(3) and 552(b). An agency seeking to withhold
materials requested under FOIA bears the burden of proving that
those materials are exempt from disclosure. Orion Research Inc.
v. EPA, 615 F.2d 551, 553 (1st Cir. 1980) (citing 5 U.S.C. §
552(a)(4)(B)).
Although FOIA authorizes courts to conduct in camera review
of challenged documents, “[t]he legislative history indicates
that, before in camera inspection is ordered, an agency should
be given the opportunity to demonstrate by affidavit or
testimony that the documents are clearly exempt from disclosure,
and that the court is expected to accord substantial weight to
the agency’s affidavit.” Bell v. United States, 563 F.2d 484,
487 (1st Cir. 1977) (internal quotation marks and citation
omitted). To satisfy its burden without submitting undisclosed
records for in camera review, the agency “must furnish a
detailed description of the contents of the withheld material
and of the reasons for nondisclosure, correlating specific FOIA
exemptions with relevant portions of the withheld material.”
Orion Research, 615 F.2d at 553. The agency’s justification for
the withholding must be sufficient to give the requester a
“meaningful opportunity to contest, and the district court an
15 adequate foundation to review, the soundness of the
withholding.” Church of Scientology, 30 F.3d at 231 (internal
quotation marks and citations omitted). Often, the written
explanation will be accompanied by a so-called “Vaughn index,”
listing each document the government seeks to preclude from
disclosure, along with a specific explanation for the
withholding.11 See N.H. Right to Life v. U.S. Dep’t of Health &
Human Servs., 778 F.3d 43, 48 n.3 (1st Cir. 2015).
Here, defendants have not yet responded to Villar’s
complaint and are required to file an answer within 21 days of
the date of this order. See doc. no. 21 (Magistrate Judge’s
Order dated February 11, 2016). Thus, defendants have not yet
had an opportunity to demonstrate by affidavit or testimony that
the documents are clearly exempt from disclosure. As set forth
in the February 11, 2016 order, the Magistrate Judge will hold a
status conference after defendants file their answer, at which
time the Magistrate Judge will set forth the appropriate
deadlines in this case. See id. at 2-3. Therefore, Villar’s
motion seeking in camera review of the withheld documents is
premature at this time. Accordingly, the motion is denied,
without prejudice to renew at an appropriate time.
11The term derives from the oft-cited FOIA case, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
16 Conclusion
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 15) and motion for extension of time (doc. no. 31) are
granted. Plaintiff’s motion for a subpoena duces tecum (doc.
no. 20) is denied without prejudice, and his motion to amend
complaint (doc. no. 29) is denied. Plaintiff’s motion to amend
his objection (doc. no. 30) is construed as an addendum to his
earlier filings, and is terminated as a motion.
The FBI is the only remaining defendant in this case.
Defendant shall file an answer to Villar’s complaint on or
before September 6, 2016.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
August 15, 2016
cc: T. David Plourde, Esq. Linda B. Sullivan Leahy, Esq.