Boudreau v. Petit

1

JASON BOUDREAU, Plaintiff, v. KEVIN PETIT, et al., Defendants.

C. A. No. 17-301WES

United States District Court, D. Rhode Island

September 30, 2024

MEMORANDUM AND ORDER REGARDING RESPONSES TO ORDER TO SHOW CAUSE

Patricia A. Sullivan United States Magistrate Judge

This Memorandum and Order sets out the Court's determination regarding the issues initially raised by the Court in its Order to Show Cause. ECF No. 116.

I. Analysis and Findings Based on Show Cause Responses

A. Background

This civil case asserts claims brought by pro se^[1]Plaintiff Jason Boudreau, who is a felon currently serving a 235-month federal sentence imposed on November 18, 2021, for on-line possession of child pornography.^[2]In this civil case, Plaintiff alleges that a criminal charge of embezzlement was wrongly brought against him by the State of Rhode Island in June 2014 based on manipulated evidence concocted (beginning in July 2013) by Warwick Police Officer Kevin Petit in coordination with the alleged victim of the embezzlement, Plaintiff's former employer, American Temperature Controls, Inc., (“ATC”), together with its principals, Richard, Donald and Steve Lussier (“Lussiers”). Boudreau v. Petit, C. A. No. 17-301 WES, 2024 WL 665546, at *1-2 (D.R.I. Feb. 16, 2024). Plaintiff also named as defendants the Rhode Island State Police (“RISP”) and two RISP officers (collectively, the “State Defendants”). Id.

The story begins in September 2009, when Plaintiff was hired as ATC's finance manager. Id. at *1. He was fired in June 2011 following ATC's discovery that he had been using ATC's computer to criminally possess child pornography. Id. Based on this discovery, Plaintiff was subsequently convicted in Rhode Island state court of possession of child pornography on his plea of nolo contendere. See United States v. Boudreau, 58 F.4th 26, 29 (1st Cir.), cert. denied, 144 S.Ct. 229 (2023); see also Boudreau v. Lussier, 901 F.3d 65, 68-70 (1st Cir. 2018). Plaintiff claims that Officer Petit (who investigated the state child pornography case beginning in June 2011) fabricated evidence and presented to the RISP an embezzlement case that appeared (falsely) to be based on probable cause. See Boudreau, 2024 WL 665546, at *2. Plaintiff alleges that Officer Petit acted in retaliation for Plaintiff having served Officer Petit with a civil complaint in July 2013^[3]that accused Officer Petit (and the Lussiers) with having wrongly monitored Plaintiff's ATC work computer to confirm that Plaintiff was using it to possess child pornography. See generally id.

While the embezzlement charge was pending, in late 2015, Plaintiff was charged again with possession of child pornography; these new charges were brought in federal court based on conduct in 2015. See Boudreau, 58 F.4th at 29-30. This time, Plaintiff was detained beginning in December 2015. ECF No. 17 at 1 (detention based on Boudreau's “abysmal” record of noncompliance with previous court-ordered obligations). After pleading guilty, Plaintiff was sentenced to nineteen and a half years in prison. Boudreau, 58 F.4th at 30-31 (“The district court indicated that it would have imposed a harsher sentence if the Sentencing Guidelines range had been higher and stated that it needed to keep Boudreau ‘locked up as long as [it] can in order to protect the public from [Boudreau] based on [his] history.'”). Because of Plaintiff's federal incarceration caused by his 2015 child pornography crimes, the State's embezzlement charges were stalled. ECF Nos. 17, 19. And because the state embezzlement charges remained pending, this civil case was stayed. ECF Nos. 17, 19; Boudreau v. Petit, C. A. No. 17-301WES, 2019 WL 6117723, at *2-3 (D.R.I. Nov. 18, 2019).

On December 2, 2022, Plaintiff entered into a confidential Settlement Agreement^[4] with ATC, the Lussiers and others. ECF No. 140-2. Pursuant to this settlement, Plaintiff accepted a monetary payment in consideration for which he dismissed with prejudice all of the cases he had filed against ATC and the Lussiers (including all claims in this case) and agreed never to use or disclose their financial information, including ATC's employee data and vendor information.^[5] Id. In turn, the Lussiers and ATC agreed to ask the State to dismiss the criminal embezzlement case and to advise the State that they were no longer willing to participate in its prosecution. ECF No. 140-2 at 23. Following receipt of ATC's letter, on February 6, 2023, the State moved to dismiss the embezzlement charge and the motion was granted by the Superior Court. ECF No. 49. The State's filing explains that it was moving to dismiss the embezzlement charge because the victim (ATC) was no longer willing to participate and because Plaintiff was already serving 235 months in prison on the federal child pornography case; the State's notice specifies that “[t]he Criminal Information is not being dismissed because of a lack of probable cause.” ECF No. 49-1. In response, on March 29, 2023, this Court lifted the stay in this case. Text Order of March 29, 2023. A month later, on April 26, 2023, Plaintiff filed a Stipulation of Voluntary Dismissal pursuant to Fed.R.Civ.P. 41(a), which dismissed “with prejudice, with each . . . party to bear its own fees, costs, and expenses,” all claims against the Lussiers. ECF No. 55. In reliance on this Stipulation, the Court terminated the Lussiers as parties.

After the Lussiers were dismissed from the case by Plaintiff, the State Defendants filed a motion to dismiss, which was granted by the Court on February 16, 2024. Boudreau, 2024 WL 665546. In this decision, Plaintiff was ordered to file an amended complaint limited to a short and plain statement of only the “remaining claims”/“surviving counts.” Id. at *17 & n.18 (emphasis added). He did not comply. Instead, he filed the First Amended Complaint (ECF No. 79), which names all of the terminated Defendants (the Lussiers and the State Defendants) and reasserts the previously dismissed claims. This misconduct has burdened the terminated parties and the Court with an unnecessary set of motions to dismiss. The wrongfully restated claims against the State Defendants, which the Court had previously dismissed with prejudice, Boudreau, 2024 WL 665546, at *1, *17, were dismissed for the second time by Text Order of May 13, 2024. My recommendation that the Lussiers' motion to dismiss be granted is pending. ECF No. 169.

B. Order to Show Cause

On May 2, 2024, the Court entered the Pretrial Scheduling Order to manage discovery regarding the only claims left in the case - those against Officer Petit and the City of Warwick. See ECF No. 90. In June 2024, the Clerk's Office brought to the attention of the Court Plaintiff's troubling conduct in issuing third-party subpoenas, particularly as to the Lussiers and ATC. ECF No. 116. The Court noted that the subpoenas appeared to be potentially abusive in that they seemed to be burdensome and seeking material that is neither relevant nor proportional. Id. The Court also noted that Plaintiff had filed the First Amended Complaint in defiance of the Court's Order, as well as that it inaccurately creates the illusion that claims against the Lussiers are still pending. Id. Therefore, the Court sua sponte issued an Order preliminarily finding abuse of the tools of discovery and requiring Plaintiff to show cause why he should not be required to seek leave of Court before he may serve any third party with a Fed.R.Civ.P. 45 subpoena.^[6]Id. The Order to Show Cause was informed by Plaintiff's past discovery abuse, particularly as to discovery directed to ATC. Boudreau v. Lussier, No. CA 13-388S, 2014 WL 651536, at *1-3 (D.R.I. Feb. 19, 2014) (quashing ten overbroad subpoenas addressed to ATC's business vendors and other third parties seeking burdensome production of documents not relevant to the case; noting that “[t]he Court is also concerned that . . . Plaintiff could be using this civil litigation to . . . retaliate against those he holds responsible for his criminal charges”); cf. Boudreau v. Smith, Case No. 3:17-cv-589 (SRU), 2019 WL 3973997, at *1-10 (D. Conn. Aug. 22, 2019) (finding much of Plaintiff's discovery either overbroad or entirely irrelevant).

The subpoenas that triggered the Court's Order to Show Cause are addressed to American Payroll, Inc., (“American Payroll”), Masters & Servant, USI Insurance, LLC, (“M&S”), and Rhode Island Department of Labor and Training (“RIDLT”); all of these are focused on ATC and the Lussiers. Plaintiff has also provided notice of his intent to serve yet another subpoena, this one addressed directly to ATC. Collectively, the Court refers to these four subpoenas as the “ATC Subpoenas.” In addition, there is a subpoena to Yahoo!, and Plaintiff has advised the Court of his intent to issue another to his former criminal defense attorney John Cotoia. The latter two are referred to as the “non-ATC Subpoenas.” Plaintiff has also issued and served or tried to serve other subpoenas addressed to RISP and the Rhode Island Attorney General; these were excluded from the Order to Show Cause and are not in issue in this Memorandum and Order.

C. Responses to Order to Show Cause and Show Cause Determination

Plaintiff responded to the Order to Show Cause with filings^[7] that collectively argue that the ATC and non-ATC Subpoenas seek documents that are relevant and proportional and that he is “not issuing subpoenas to harass Steve Lussier or ATC” and “does not have any ill-will or animosity toward ATC or the Lussier Defendants [ATC's principals].” ECF No. 135 at 7.

Plaintiff's responses fail to address the Court's concern that he violated a Court Order by filing the First Amended Complaint that renames the Lussiers and reasserts barred claims against them. Beyond conclusory...