Crooker v. Burns
| Decision Date | 10 April 2008 |
| Docket Number | Civil Action No. 07-30065-MAP.,Civil Action No. 06-30187-MAP.,Civil Action No. 06-30123-MAP.,Civil Action No. 06-30214-MAP.,Civil Action No. 07-30008-MAP.,Civil Action No. 07-30068-MAP.,Civil Action No. 07-30077-MAP.,Civil Action No. 07-30007-MAP. |
| Citation | 544 F.Supp.2d 59 |
| Parties | Michael Alan CROOKER, Plaintiff v. Patrick BURNS et al., Norman Shink, Bryon Dailey et al., Stephen Swanson, Jane Heffner et al., Edward Cronin, Sean Condon, and Onofrio Minafo, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Pro se Plaintiff Michael Alan Crooker, a federal prisoner, has filed eight separate complaints against Defendants Patrick Burns, Norman Shink, Bryon Dailey, Stephen Swanson, Jane Heffner, Edward Cronin, Sean Condon, and Onofrio Minafo. Defendants are all federal agents who were involved in the execution of search warrants in the course of a criminal investigation of Plaintiff. Crooker, seeking monetary damages, charges Defendants with violations of the Fourth Amendment under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and negligence under the Federal Tort Claims Act.
As suits by a federal prisoner against government officials, these cases are subject to an initial screening for frivolousness, maliciousness, or failure to state a claim pursuant to the Prison Litigation Reform Act, 28 U.S.C. § 1915A. This task was referred to Chief Magistrate Judge Kenneth P. Neiman, who on August 15, 2007 recommended in identical memoranda that all eight of the complaints listed in the caption of this memorandum be dismissed without prejudice for failure to state a claim for which relief might be granted. (See, e.g., Crooker v. Burns, No. 06-30187, Dkt. No. 20, Report and Recommendation for Summ. Dismissal Pursuant to 28 U.S.C. § 1915A ("Report and Recommendation").)
For the reasons stated below, based in large part on developments taking place subsequent to the issuance of the recommendation, the court will decline to adopt the recommendation that these eight cases be dismissed but will order that all proceedings in the cases be stayed pending disposition of new, recently initiated criminal charges against Plaintiff.
Plaintiff is currently serving a prison term following his conviction for being a felon in possession of a firearm silencer. He was charged with that crime after a report that he was illegally sending volatile chemicals through the mail prompted federal agents to seize one of his mailed parcels, at which point they discovered that it contained the silencer. As part of the investigation aimed at Crooker, federal officials executed search warrants on Plaintiff's residence and his parent's home, where he had recently resided and stored some personal property. They also arrested Crooker and searched his car and computer.
Pursuant to these searches, the government seized numerous items including scientific equipment, an inventory of chemicals, some CDs and DVDs, and certain documents. The majority of the many counts in these suits relate to Crooker's allegations that Defendants exceeded the scope of the relevant search warrants both in regard to the articles seized and the intrusiveness of the search.1
Following a jury trial, Crooker was convicted of being a felon in possession of the firearm silencer on July 11, 2006. (No. 04-30034.) Based on Plaintiff's very serious criminal record, the court sentenced Plaintiff to 262 months in prison in June 2007. That conviction is currently on appeal before the First Circuit. (No. 07-1964.)
In late 2006, following his conviction but prior to sentencing, Crooker filed pro se actions in state court against several of the individuals involved in investigating his wrongdoing.2 (Crooker v. Bums, No. 06-30187; Crooker v. Shink, No. 06-30213; Crooker v. Dailey, No. 06-30214; Crooker v. Swanson, No. 07-30007; Crooker v. Heffner, No. 07-30008; Crooker v. Spellacy, No. 07-30022; Crooker v. Cronin, No. 07-30065; Crooker v. Condon, No. 07-30068; and Crooker v. Minafo, No. 07-30077.3) The government promptly removed all of these suits to federal court.
The number of counts offered in some of these complaints is so large, and the alleged Fourth Amendment offense often so negligible, that it is hard to avoid the suspicion that the lawsuits are motivated by a desire to harass the agents who participated in building the criminal case against the Plaintiff. The Burns complaint, for example, offers 192 counts, with — to take one instance — Count 34 seeking damages for an allegedly illegal seizure of a pair of rubber gloves. The Dailey suit contains 248 counts, including claims for damages for seizure of plastic tubing (Count 51) and a pair of tongs (Count 52). Crooker v. Swanson tops all the others with 2799 counts, including separate counts for seizure of certain photographs of traffic conditions at Bradley Airport (Counts 1269 through 1274) and for a copy of a newspaper article (Count 1185). The other complaints, many with unnumbered counts, offer claims in a similar vein. Where the counts are numbered, Plaintiff's ad damnum is usually $100,000 per count.
As noted above, a federal prisoner suing government employees, such as Plaintiff, is subject to the screening provisions of the Prison Litigation Reform Act ("PLRA"). 28 U.S.C. §§ 1915A(a), (b). The court referred Crooker's cases to Magistrate Judge Neiman to conduct the necessary review, and he accordingly issued a Report and Recommendation on August 15, 2007.
Judge Neiman recommended that the suits be dismissed for failure to state a claim under the rule set out by the Supreme Court in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Heck prohibits a person with an outstanding criminal conviction from bringing a civil suit where "a judgment in favor of the plaintiff [in the civil case] would necessarily imply the invalidity of his conviction or sentence," unless "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." 512 U.S. at 487, 114 S.Ct. 2364. This "Heck bar" prevents collateral attack on a criminal conviction through a civil suit for damages, promoting consistency between civil and criminal determinations and the finality of criminal appeals. Id. at 484-85, 114 S.Ct. 2364.
Though not resting his recommendation on this ground, Judge Neiman also noted his concern about Plaintiff's apparent tactic of filing in state court, where he might proceed in forma pauperis, and leaving the burden on the government to remove the case and pay the $350.00 federal court filing fee. As Plaintiff was no doubt aware, he is ineligible for in forma pauperis status in federal court as a prisoner who has had at least three previous actions dismissed on grounds of frivolousness, maliciousness, or failure to state a claim. 28 U.S.C. § 1915(g) (the "three strikes" rule). Thus, by filing his lawsuits against federal agents in state court, knowing that they were certain to be removed, he saved himself the cost of the federal filing fee.
In a development subsequent to the issuance of Judge Neiman's recommendation, Judge Edward F. Harrington of the District Court for the District of Massachusetts on March 24, 2008, dismissed a civil action filed by Crooker as a sanction for his abusive pleading practice of repeatedly filing removable actions in state court to avoid the "three strikes" rule. As part of the sanction, Judge Harrington barred Crooker from filing any civil actions without payment of the filing or removal fee. Crooker v. Merchants CR Guide Company, No. 08-10382 (D.Mass. March 24, 2008).
Plaintiff filed timely objections to Judge Neiman's recommendation in this case, arguing that his claims fell within an exception outlined in footnote seven of the Heck decision, covering civil actions whose success does not necessarily imply the invalidity of the related criminal conviction. 512 U.S. at 487 n. 7,114 S.Ct. 2364.
Since the issuance of the Report and Recommendation and Plaintiff's filing of objections there has been, in addition to Judge Harrington's decision, a second significant development in Crooker's situation. On December 4, 2007, Crooker was indicted on new, serious charges, including mailing a threatening communication, threatening to use a weapon of mass destruction, threatening to transfer a toxin (, ricin) for use as a weapon, and possession of toxins (ricin and abrin) for use as weapons. (United States v. Crooker, No. 07-30038, Dkt. No. 1.) This indictment appears to have been based in part on evidence seized during the searches currently under challenge by Plaintiff.
Footnote seven of Heck has cast doubt on the propriety of dismissing unreasonable search or seizure claims where a finding of a Fourth Amendment violation might not imply the invalidity of a related criminal conviction. This situation might arise, for example, where a civil jury finds that a Fourth Amendment violation occurred, but where the evidence seized during the course of the improper search might nevertheless be admissible at a criminal trial based on doctrines such as inevitable discovery or independent source. See Heck, 512 U.S. at 487 n. 7, 114 S.Ct. 2364.
Circuit courts have split on whether the Supreme Court's allusion to this possibility signifies that civil Fourth Amendment claims should receive a...
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