Bethea v. Plusch
| Decision Date | 29 November 2011 |
| Docket Number | Case No. 1:11-cv-57-jgm |
| Court | U.S. District Court — District of Vermont |
| Parties | Craig Bethea, Plaintiff, v. Michael Plusch, William Wright, Nancy Corsones, Bennington County, State of Vermont, and United States of America, Defendants. |
(Docs. 13, 18, 20 and 21)
Plaintiff Craig Bethea, a federal inmate proceeding pro se, brings this action claiming the Defendants violated his constitutional rights, including his Fourth Amendment right to be free from unreasonable searches and seizures. One Defendant, Judge Nancy Corsones, has been dismissed. The remaining Defendants now move to dismiss on the basis of, among other things, timeliness, prosecutorial immunity, and sovereign immunity.
For the reasons set forth below, the motions to dismiss are GRANTED and this case is DISMISSED.
Bethea alleges that in January 2006, Officer Michael Plusch of the Bennington Police Department wrongfully obtained a warrant to record conversations through electronic surveillance. Officer Plusch based his warrant application on statements from a confidential informant. The Complaint alleges the informant'sstatements were not corroborated by any evidence aside from Bethea's criminal history, and did not constitute probable cause. Bethea claims that by using the informant's statements to obtain, and then execute the warrant, Officer Plusch violated the Fourth Amendment.
Bethea also names former State's Attorney William Wright as a Defendant, claiming that Wright coerced the confidential informant into cooperating with law enforcement, and prosecuted the case in the absence of probable cause.
Although the wire warrant and a subsequent search warrant were obtained in state court, Bethea was ultimately prosecuted in federal court. Bethea claims that the shift to federal court amounted to unlawful "forum shopping," and denied him the ability to challenge the wire warrant. (Doc. 5 at 12.) He further claims that the "combined efforts of the state and federal officials" not only prevented him from challenging the warrant and the informant's "alleged free and voluntary consent," but also denied him effective assistance of counsel and "his right to due process under the law." (Id. at 12-13.)
On December 10, 2008, Bethea entered a conditional guilty plea to one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. The plea was conditioned upon the appellate resolution of his pro se motion to suppress, which challenged the validity of the wirewarrant. On July 19, 2010, the Second Circuit upheld this Court's determination that the warrant was lawful. United States v. Bethea, 388 F. App'x 20, at *1-*2 (2d Cir. July 19, 2010).
Officer Plusch moves to dismiss Bethea's Complaint as untimely. The Complaint alleges that in late 2005 and early 2006, Officer Plusch acted wrongfully in obtaining the wire warrant. The Complaint was filed on April 13, 2011, over five years after Officer Plusch's alleged misconduct.
Bethea brings his claims against Officer Plusch under 42 U.S.C. § 1983. (Doc. 5 at 1.) Civil rights claims brought pursuant to 42 U.S.C. § 1983 are subject to Vermont's statute of limitations for personal injury actions. See Wilson v. Garcia, 471 U.S. 261, 266-67 (1985); Owens v. Okure, 488 U.S. 235, 249-51 (1989) (); Chin v. Bowen, 833 F.2d 21, 23-24 (2d Cir. 1987). That statute of limitations is three years. See 12 V.S.A. § 512(4). Consequently, without some form of tolling, Bethea's claims are untimely.
Bethea does not argue for tolling. Instead, he contends that his cause of action will not accrue until he is "provided[a] decision in any court of law regarding the probable cause and other questions of law" surrounding the search warrant obtained by Officer Plusch. (Doc. 19 at 4.) This argument is misplaced.
The parties agree that pursuant to federal law, Bethea's Fourth Amendment claim accrued whenever he knew or had reason to know of his injury. See Pearls v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002). However, "[t]he reference to 'knowledge of the injury' does not suggest that the statute does not begin to run until the claimant has received judicial verification that the defendants' acts were wrongful." Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994) (brackets omitted). "Rather, the claim accrues when the alleged conduct has caused the claimant harm and the claimant knows or has reason to know of the allegedly impermissible conduct and the resulting harm." Id.
Bethea was aware of the wire warrant, and the affidavit in support of that warrant, during his criminal case. United States v. Bethea, No. 1:07-cr-00003-jgm (Docs. 21, 23, 35, 47.) Specifically, he filed a pro se motion to suppress on February 15, 2008, in which he challenged the validity of the confidential informant's consent, and attached copies of the warrant and Officer Plusch's affidavit. Id. (Docs. 47, 47-1.) He thus "had reason to know of the allegedly impermissible conduct and resulting harm" more than three years before he filed this Complaint. Veal, 23 F.3d at 724. Because Bethea was aware inFebruary 2008 (if not sooner) of the facts underlying his current claim against Officer Plusch, that claim is untimely, and Officer Plusch's motion to dismiss is GRANTED. Cf. Wallace v. Kato, 549 U.S. 384, 397 (2007) (); see also Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008) ().
Defendants State of Vermont, Bennington County, and former Bennington County State's Attorney William Wright (collectively "State Defendants") have moved to dismiss, citing sovereign and prosecutorial immunity. State Defendants also argue that Bethea's claims are barred under the Supreme Court's ruling in Heck v. Humphrey, 512 U.S. 477 (1994).
As noted above, Bethea's allegations against the State Defendants are that Attorney Wright conducted a malicious prosecution without probable cause, that Wright coerced the confidential informant, and that there was a conspiracy among state and federal parties to deprive him of an opportunity to challenge the warrant. Defendants' first argument for dismissal is that these claims are barred by the doctrine set forth in Heck.
Heck established that a plaintiff may not bring a civil rights claim under 42 U.S.C. § 1983 if "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence." 512 U.S. at 487. Therefore, before a plaintiff may bring such a claim, he must show that his conviction "has been reversed on direct appeal, expunged by executive order, declared invalid by a [] tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87.
In this case, Bethea's conviction was upheld on direct appeal, and there is no suggestion in the record of it having been expunged or declared invalid. Heck thus bars his claims unless the Court determines that this action, "even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff . . . ." Id. at 487 (emphasis in original). Bethea's malicious prosecution claim alleges that Defendant Wright brought a case against him without probable cause. Because probable cause was a requisite basis for prosecution, judgment in Bethea's favor would necessarily imply the invalidity of his conviction. His malicious prosecution claim against Attorney Wright is therefore DISMISSED. See, e.g., Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997); Collins v. Sovereign Bank, 482 F. Supp. 2d 235, 240-41 (D. Conn. 2007).
The claim that Attorney Wright coerced the confidential informant requires a separate analysis. Reading Bethea's claims liberally, the Court assumes that by attacking the voluntariness of the informant's consent, Bethea seeks to undermine the legality of the wire and, correspondingly, the use of evidence obtained through electronic surveillance. That evidence was ultimately cited in Officer Plusch's application for a search warrant which, in turn, allowed for the discovery of evidence used to secure Bethea's conviction.
An attack on the validity of the search warrant would be brought under the Fourth Amendment. Heck expressly noted that its holding might not apply to such an attack, since a Fourth Amendment violation would not necessarily imply an unlawful conviction. 512 U.S. at 487 n.7. "For example, a federal court's finding of a Fourth Amendment violation would not necessarily imply that a prior state conviction was unlawful if, despite the constitutional violation, the subject evidence was admissible based on such doctrines as independent source, inevitable discovery, and harmless error." Williams v. Ontario County Sheriff's Dep't, 662 F. Supp. 2d 321, 329 (W.D.N.Y. 2009) (citing Heck, 512 U.S. at 487 n.7).
Here, it is not clear whether the information obtained as a result of the wire constituted the sole support for the search warrant. It is also unclear whether the evidence obtained fromthe search would have been admissible notwithstanding a successful attack on the informant's consent. The Court therefore finds that, based upon the limited factual record currently before it, dismissal on the basis of Heck would be inappropriate.
Bethea also claims that there was a conspiracy between state and federal actors to deprive him of the ability to challenge the wire warrant. This claim presumably arises out of the fact that once the criminal...
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