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Boudreau v. Lussier

United States Court of Appeals, First Circuit

August 21, 2018

JASON BOUDREAU, Plaintiff, Appellant,


          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.

          Marc DeSisto, with whom Kathleen M. Daniels, and DeSisto Law LLC on brief, for appellees Kevin Petit, and City of Warwick.

          Before Torruella, Lynch, and Barron, Circuit Judges.


         Jason 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 "Warwick Defendants").

         The district court granted summary judgment in favor of the defendants on all of Boudreau's claims. Boudreau has appealed. We affirm.


         We view 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).


         Boudreau 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.

         On June 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.

         John 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 to ATC.

         After 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.

         Detective 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 years' imprisonment.


         Boudreau 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.

         Boudreau 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 ...

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