Villars v. Kubiatowski

JULIO VILLARS, Plaintiff, v. STEPHEN KUBIATOWSKI, MORRIS PASQUAL, STEPHEN LEE,WILLIAM ROECKER, DEA SPECIAL AGENT ROBERT BELLA,in their individual and official capacities, FEDERAL BUREAU OF INVESTIGATION,DRUG ENFORCEMENT ADMINISTRATION, UNITED STATES ATTORNEY'SOFFICE FOR THE NORTHERN DISTRICT OF ILLINOIS,DEPARTMENT OF JUSTICE, and UNITED STATES, et al., Defendants.

Case No. 12-cv-4586

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

September 26, 2017

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff brings claims in his Sixth Amended Complaint against various federal employees and agencies: Stephen Kubiatowski ("Kubiatowski"); Morris Pasqual ("Pasqual"); Stephen Lee ("Lee"); William Roecker ("Roecker"); Robert Bella ("Bella"); the Federal Bureau of Investigation ("FBI"); the Drug Enforcement Administration ("DEA"); the United States Attorney's Office for the Northern District of Illinois ("USAO"), the Department of Justice ("DOJ"), and the United States (collectively, the "Federal Defendants"). This matter is before the Court on the motion [197] to dismiss Counts I, II, III, IV, and V of the Sixth Amended Complaint filed by the Federal Defendants.¹ Plaintiff opposes the motion [202]. For thefollowing reasons, the Federal Defendants' motion [197] is granted. Counts I, II, III, IV, and V are dismissed as to Defendants Pasqual, Lee, Roecker, Bella, FBI, DEA, USAO, DOJ, and United States. Plaintiff may proceed with Count I and Count II as they relate to Kubiatowski's alleged failure to comply with Federal Rule of Criminal Procedure 46(h)(2) only and are otherwise dismissed. Counts III and IV are dismissed as to Kubiatowski. This case is set for further status hearing on October 11, 2017 at 10:15 a.m.

I. Factual Background²

Plaintiff Julio Villars ("Plaintiff") is a citizen of Honduras who has resided in the United States since 1995. [175] ¶¶ 34, 72. The federal government granted Plaintiff deferred action on his immigration status in 2008 based on his work as a Confidential Human Source ("CHS") for the FBI, the DEA, and the USAO. Id. ¶ 35, Ex. A. Plaintiff agreed to work as a CHS for these agencies based on promises of safety that were provided to him, as well as promises of a Green Card. Id. ¶¶ 37, 54, 105. Defendant Roecker, an FBI Special Agent, assured Plaintiff that his identity as a CHS would not be disclosed, and that if he became endangered he would receive a new identity and be relocated at the federal government's expense. Id. ¶¶ 50, 55-56. Plaintiff also alleges that he was threatened with deportation or non-renewal of his deferred action if he ceased his work as a CHS. Id. ¶ 36.

As a CHS, Plaintiff worked on several cases, including United States v. Diaz, et al., No. 10-cr-199 ("Diaz"). On March 11, 2010, Plaintiff participated in a controlled transactioninvolving one pound of methamphetamine that led to the arrest of the defendants in the Diaz case. [175] ¶ 40. On October 27, 2010, the USAO filed a motion for a material witness warrant pursuant to 18 U.S.C. § 3144 requesting that a material witness warrant be issued for Plaintiff. Id. ¶ 44. See also Case No. 10-cr-199, docket entry [54]. The motion was accompanied by a sworn affidavit from Kubiatowski, who at the time was an Assistant U.S. Attorney for the Northern District of Illinois. [175] ¶ 44. Kubiatowski identified Plaintiff by name as a cooperating source in the Diaz case. Id. ¶ 58. Kubiatowski also represented that Plaintiff's testimony was "critical" to the government's case, and that it was necessary to detain Plaintiff on a material witness warrant because Plaintiff was facing imminent deportation proceedings and would be outside the court's jurisdiction by the time United States v. Diaz was tried. Id. ¶ 46.

Plaintiff asserts that Defendants Kubiatowski and Roecker met with Defendants Pasqual (a supervisory Assistant U.S. Attorney for the Northern District of Illinois), Lee (an Assistant U.S. Attorney for the Northern District of Illinois), and Bella (a DEA Special Agent) and agreed to seek this material witness warrant. Id. ¶¶ 53, 58, 75. Bella initially came up with the idea of seeking a material witness warrant for Plaintiff, and Pasqual approved the release of Plaintiff's name in the accompanying affidavit. Id. ¶¶ 60, 62. Roecker assisted Kubiatowski in preparing this affidavit. Id. ¶ 45. Plaintiff further alleges that the USAO has a policy, custom or practice of gratuitously disclosing the names of confidential informants in order to pressure defendants into plea agreements. Id. ¶ 59.

On November 3, 2010, Judge Castillo issued a material witness arrest warrant for Plaintiff. [175] ¶ 48. On November 10, 2010, Defendant Roecker arrested Plaintiff as a material witness. Id. ¶ 49. Plaintiff was taken into custody and transported to Ozaukee County Jail in Port Washington, Wisconsin. Id. ¶ 106. While there, Plaintiff alleges that he was subject tounconstitutional treatment, including the requirement that he undergo strip searches and the denial of his access to the law library. Id. ¶¶ 106-44. Plaintiff was released from custody on February 1, 2011. Id. ¶ 139.³

According to Plaintiff, the Federal Defendants' actions in publicly releasing his CHS status have exposed Plaintiff to the risk of harm or death by drug trafficking organizations in the United States and if he is returned to Honduras. [175] ¶¶ 72, 74. Plaintiff alleges that he has received retaliatory threats and harassment since his name was released: Plaintiff informed the court and Kubiatowski about threats made against him on January 11, 2011, but no effort was made to follow up and investigate these threats. Id. ¶¶ 80-81. On November 17, 2011, Plaintiff was called a "sapo," meaning snitch or rat, on social media and warned that others were aware of his CHS status. Id. ¶ 97, Ex. G. Furthermore, in October 2015, Plaintiff was advised by family members to avoid coming to Chicago, especially near their houses, because they were being watched by associates of drug traffickers. Id. ¶ 86. Plaintiff relocated himself in October 2015 and has been required to move continuously since then to avoid being located by drug traffickers. Id. ¶¶ 95-96. Plaintiff recently sought assistance from Roecker, the FBI, and the DEA, but he was told that they would not get involved due to the pending litigation against them. Id. ¶¶ 87-94. Plaintiff alleges that he has suffered severe and lasting emotional and mental distress and lost past and future income as a result of the Federal Defendants' actions. Id. ¶¶ 79, 104. Plaintiff also claims that he was promised a non-deportation agreement to induce his cooperation, but government officials have instead denied him protection and barred his attempts to receive relief from deportation. Id. ¶¶ 103-05.

Plaintiff filed a pro se complaint [14] on June 13, 2012, asserting claims related to his arrest as a material witness and the conditions of his detention in Ozaukee County Jail. These claims were brought against various federal and state government defendants. Shortly thereafter, the Court recruited counsel for Plaintiff [see 12]. In April 2013, counsel moved to withdraw, having opined that Plaintiff's claims were not warranted under existing law or under a good faith extension of the law [see 3]. The Court granted counsel's motion [see 13] and allowed Plaintiff to proceed pro se. Plaintiff has capably represented himself since that time.

On May 17, 2013, Plaintiff filed an amended complaint [17] with leave of the Court. The amended complaint eliminated all of the federal government defendants except Kubiatowski. Summonses were issued to the Defendants named in the amended complaint. See [18]. On August 13, 2013, Plaintiff filed a second amended complaint [54], which Kubiatowski moved to dismiss. See [83]. On May 5, 2014, the Court granted the motion in part and dismissed all claims against Kubiatowski in his official capacity and all claims against Kubiatowski to the extent that they seek to hold him liable for misrepresentations he allegedly made to Judges Castillo and/or Denlow to secure Plaintiff's detention. See [98] at 23-27. Plaintiff subsequently entered into settlements with certain state defendants. See [120], [121], [122], [123] (stipulations of dismissal and minute orders dismissing defendants). On January 3, 2014, Plaintiff filed a motion [87] for leave to file a third amended complaint, which was denied [90].

On January 6, 2015, Plaintiff filed a motion [132] for leave to file a proposed fourth amendment complaint. The proposed fourth amended complaint named Kubiatowski as the only federal defendant, along with Ozaukee County Jail and associated state-level individuals. On September 2, 2015, the Court granted in part and denied in part Plaintiff's motion. See [144].The Court also granted Plaintiff leave to file another motion for leave to file an amended complaint.

Plaintiff then filed a motion [151] for leave to file a fifth amended complaint and a motion [156] for leave to file a supplemental complaint and request for declaratory and injunctive relief or, in the alternative, a sixth amended complaint. Plaintiff's motion [156] for leave to file a supplemental complaint proposed to add additional federal defendants including Roecker, Lee, Bella, Pasqual, the U.S. Attorney General in her official capacity, the DEA, the FBI, and the DOJ. It also proposed to add additional claims against Kubiatowski. The Federal Defendants opposed this motion. Kubiatowski additionally filed a motion [149] to strike Counts I, II, III, and IV of Plaintiff's Fourth Amended Complaint.

On April 29, 2016, the Court granted in part and denied in part Defendant Kubiatowski's motion to strike portions of the fourth amended complaint, denied Plaintiff's motion for leave to file a fifth amended complaint, and granted in part and denied in part Plaintiff's motion for leave to file a supplemental complaint and request for...