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Villar v. Federal Bureau of Investigation

United States District Court, D. New Hampshire

August 15, 2016

Richard Villar
v.
Federal Bureau of Investigation et al. Opinion No. 2016 DNH 138

          ORDER

          Landya McCafferty United States District Judge

         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]

         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. 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 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/Giglio[3] 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 flawed in that it consisted entirely of a reprise of his failed § 2255 arguments cloaked in a 42 U.S.C. § 1983/Bivens[4] 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 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.

         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 ...


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