FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND [Hon. Lincoln D. Almond, U.S. Magistrate Judge]
Patrick T. Roath, for appellant.
Douglas A. Giron, with whom Shechtman Halperin Savage, LLP
was on brief, for appellees Steve Lussier, John Lussier,
Donald Lussier and Steve Sorel.
Christopher E. Hultquist, with whom DeLuca & Weizenbaum
Ltd. on brief, for appellees Officer Kim Carroll, Officer
Nathan Bagshaw, Sergeant Weller, and City of Cranston.
DeSisto, with whom Kathleen M. Daniels, and DeSisto Law LLC
on brief, for appellees Kevin Petit, and City of Warwick.
Torruella, Lynch, and Barron, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
Boudreau worked for Automated Temperature Controls, Inc.
(ATC), in Cranston, Rhode Island. His employers came to
suspect that he was viewing child pornography at work. As a
result, they covertly installed screenshot-capturing software
on Boudreau's work computer, which confirmed these
suspicions. This led them to contact law enforcement. To make
a long story short -- a story we will explain in much greater
detail below -- this culminated in Boudreau's arrest and
plea of nolo contendere in state court to one count
of possession of child pornography. Boudreau then brought a
host of claims under 42 U.S.C. § 1983 and the Electronic
Communications Privacy Act (ECPA), 18 U.S.C. § 2511,
against the various individuals who participated in the
events leading up to and following his arrest. The named
defendants, now the appellees, included: ATC corporate
president Steven Lussier, ATC co-owner John Lussier, and ATC
information technology manager Steven Sorel (collectively,
the "ATC Defendants); the City of Cranston and Cranston
Police Department Officer Kim Carrol, Officer Nathan Bagshaw,
and Sergeant Greg Weller (collectively, the "Cranston
Defendants"); and the City of Warwick and Warwick Police
Department detective Kevin Petit (collectively, the
district court granted summary judgment in favor of the
defendants on all of Boudreau's claims. Boudreau has
appealed. We affirm.
the facts in the summary judgment record in the light most
favorable to Boudreau, and draw all reasonable inferences in
his favor. See Mu v. Omni Hotels Mgmt. Corp., 882
F.3d 1, 3 (1st Cir. 2018).
worked for ATC from September 2009 to June 2011. At some
point during the second week of June 2011, Boudreau asked
Sorel to help recover email records that had been deleted
from Boudreau's work computer. The file recovery software
that Sorel employed compiled a list of
"recoverable" files that had been deleted from that
computer. This list included a number of pornographic movies
and photos. Sorel brought this to Steven Lussier's
attention. In response, Steven Lussier directed Sorel to
install the screen-capture software System Surveillance Pro
(SSP) on Boudreau's work computer. Sorel did so --
unbeknownst to Boudreau -- on June 16, 2011. SSP captures and
saves screen-shots of whatever is being displayed on the
monitor of the computer on which it is installed. Sorel
configured SSP to take screenshots whenever the user of
Boudreau's computer typed certain keywords, including,
for example, "yahoo." Sorel also arranged for SSP
to send these screenshots to an email account that he had set
up specifically for that purpose.
20, 2011, SSP captured screenshots of what Sorel -- who
reviewed those screenshots two days later -- believed to be
images of child pornography. The ATC Defendants conferred,
and decided to contact law enforcement. On June 23, Steven
Lussier delivered a USB drive containing the offending
screenshots to Detective Kevin Petit of the Warwick Police
Department. Detective Petit also requested to analyze
Boudreau's work computer. So, the following morning, John
Lussier and Sorel brought him that computer, and John Lussier
signed a consent form for Detective Petit to search the
computer. Detective Petit's ensuing search revealed
numerous files containing child pornography.
Lussier also mentioned to Detective Petit that ATC had
provided a company laptop to Boudreau, and Detective Petit
responded that he wanted to examine that laptop as well. That
afternoon, Detective Petit spoke to John Lussier about
Boudreau's company laptop again. John Lussier told
Detective Petit that Boudreau was out golfing with Steven
Lussier, but that he would be returning to ATC later on.
During this conversation, Detective Petit also told John
Lussier that he had become aware that Boudreau's
driver's license had been suspended. Detective Petit then
contacted Cranston Police Officer Nathan Bagshaw, relaying
information about his investigation of Boudreau and that
Boudreau would be driving back to ATC on a suspended license.
Officer Bagshaw, Officer Kim Carrol, and Sergeant Gregg
Weller then dispatched to ATC headquarters. They arrested
Boudreau for driving on a suspended license upon his arrival
arresting Boudreau, the Cranston Police impounded the blue
Toyota Corolla in which he had returned to ATC headquarters.
John Lussier also requested that the Cranston Police impound
Boudreau's green Ford Explorer, which he had left parked
at ATC headquarters. John Lussier explained that ATC had
terminated Boudreau's employment, and that, fearing
retaliation, he did not want Boudreau to have any reason to
return to ATC's premises. The officers acquiesced,
impounding that vehicle as well. They then conducted
inventory searches of both of Boudreau's impounded
vehicles, seizing various electronic devices from them.
Petit then applied for and received warrants to search
Boudreau's electronic devices, Yahoo! accounts, and
residence. The searches that these warrants authorized
yielded additional child pornography. On January 2, 2014 --
after this litigation had commenced -- Boudreau entered a
plea of nolo contendere in state court to one count
of possession of child pornography, and was sentenced to five
filed a pro se complaint in the District of Rhode Island on
May 28, 2013, and amended it exactly three months later. His
amended complaint contained five counts. Count One alleged
Steven Lussier, John Lussier, and Steven Sorrel, along with
Detective Petit, illegally searched his office and office
computer, and that the ATC Defendants and Cranston Defendants
illegally seized and searched his two vehicles. Count Two
alleged that the ATC Defendants conspired with Detective
Petit to deprive Boudreau of his Fourth Amendment rights, and
with Officer Carrol, Officer Bagshaw, and Sergeant Weller to
entrap him into driving on a suspended license. Count Three
alleged that Detective Petit made false statements in and
omitted material facts from his affidavit in support of a
warrant to search Boudreau's property. Count Four alleged
that the ATC Defendants unlawfully intercepted his electronic
communications, in violation of ECPA. Count Five alleged
municipal liability against the Cities of Cranston and
Warwick. Boudreau appears to have brought all of his claims
against state actors (that is, everyone except for the ATC
Defendants) under 42 U.S.C. § 1983.
moved for leave to file a second amended complaint that would
include a new claim under the Stored Communications Act, 18
U.S.C. § 2701, but the district court denied that
motion. The parties then filed cross-motions for summary
judgment on all claims. A United States Magistrate Judge
issued a Report and Recommendation that the district court
grant summary judgment in favor of the Cranston Defendants
and Warwick Defendants on all of Boudreau's claims
against them. As for the ATC Defendants, the Magistrate Judge
recommended granting summary judgment on all of
Boudreau's claims against them except for his ECPA claim,
for which it found summary judgment unwarranted in either
party's favor. The district court, however, only ...