UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Villar

v. Civil No. 15-cv-270-LM Opinion No.

Federal Bureau of Investigation et al.

O R D E R

Richard Villar, a prisoner, brings this suit pursuant to

the Freedom of Information Act,

(“FOIA”),

challenging the refusal of the Federal Bureau of Investigation

to disclose certain documents and information that he requested

pursuant to that statute.1 Before the court are several motions,

including:

 Defendants’ motion to dismiss Villar’s purported

constitutional tort claims (doc. no. 15);

 Villar’s motion for a subpoena duces tecum (doc. no.

20); and

 Villar’s motion to amend his complaint (doc. no. 29).2

1 In addition to the Federal Bureau of Investigation (“FBI”), Villar names David M. Hardy, Section Chief of the FBI’s Records Management Division, and FBI Special Agent Brian Keefe as defendants in this action.

2 Defendants also filed a motion to extend the time to object to Villar’s motion to amend the complaint (doc. no. 31). In addition, Villar filed a “motion to amend the motion

that was amended in plaintiff’s objection to the defendants’

motion to dismiss plaintiff’s claim under Rule 15(a).” Doc. no.

30. In that filing, Villar appears to seek to amend his

objections (doc. nos. 18 and 22) to defendants’ motion to

dismiss his constitutional claims. The court therefore

construes document no. 30 as an addendum to Villar’s objections

to defendants’ motion to dismiss, and considers those arguments

in ruling on defendants’ motion.

Background

I. Villar’s Conviction and Habeas Petitions

In January 2008, Villar was convicted of robbery and

conspiracy to commit armed robbery. See United States v.

Villar, No. 1:06-cr-85-PB (“Villar I”), doc. no. 120. On

remand, after Villar appealed his conviction alleging juror bias

and challenging his sentence, see United States v. Villar,

(1st Cir. 2009), the district court denied Villar’s

motion to set aside the verdict and upheld his conviction. See

Villar I, Oral Order, June 21. Villar filed a second appeal,

Villar did not object to that motion. Defendants’ motion is granted, and the court considers herein defendants’ objection (doc. no. 32) to Villar’s motion to amend his complaint.

2 and the First Circuit affirmed his conviction. See Villar I,

doc. no. 191.

Villar then filed a petition for a writ of habeas corpus

under

. See Villar v. United States, 11-cv-592-

PB (“Villar II”). The court denied Villar’s petition on January

20, 2012. See

at doc. no. 5. The First Circuit denied

Villar’s request for a certificate of appealability and

terminated his appeal. See

at doc. no. 17.

On December 3, 2013, Villar filed a second habeas corpus

petition under § 2255. See Villar v. United States, 13-cv-518-

PB (“Villar III”). The court denied the petition without

prejudice, holding that it lacked the power to consider a second

petition under § 2255 unless Villar first obtained permission

from the First Circuit authorizing him to file the petition.

See Villar III, doc. no. 3. The First Circuit denied Villar

permission to file a second or successive habeas corpus petition

on July 3, 2014. See Villar I, doc. no. 209.

On November 3, 2014, Villar filed a “Pro Se Complaint for

Set Aside the Judgment Pursuant to Fed. R. Civ. P. Rules

60(b)(3), 60(d)(3), and 60(b)(6).” See Villar v. United States,

14-cv-491-WES (doc. no. 1) (“Villar IV”). In that action,

Villar named as defendants the trial judge, the prosecuting

attorney, the investigating agent from the FBI, and his trial

counsel, alleging a conspiracy to violate his due process rights

3 at trial. As in the prior habeas petitions, Villar alleged in

his complaint in Villar IV that the government had failed to

disclose benefits, promises, and inducements provided to Shauna

Harrington, a witness who had testified against him at his

criminal trial.

On January 14, 2014, the Magistrate Judge recommended

dismissal of Villar’s action, noting that it constituted

Villar’s third successive habeas corpus petition without leave

of the First Circuit. See Villar IV, doc. no. 16. Villar

objected to the Magistrate Judge’s report and recommendation,

and filed several motions. One of Villar’s motions sought leave

to amend his complaint to add allegations that the FBI had

wrongfully denied his FOIA request for impeachment evidence

against Shauna Harrington and to add claims for violation of his

Brady/Giglio3 rights at trial, arising from the alleged failure

to disclose impeachment evidence sought in his FOIA request.

In response to Villar’s motions, the Magistrate Judge

issued an amended report and recommendation (“R&R”). See Villar

v. United States, No. 14-cv-491-WES,

(D.N.H. May

29, 2015). In the amended R&R, the Magistrate Judge recommended

dismissal of Villar’s complaint, noting that it “was fatally

3 See Brady v. Maryland,

(1963), and Giglio v. United States,

(1972).

4 flawed in that it consisted entirely of a reprise of his failed

§ 2255 arguments cloaked in a

/Bivens4 action.”

Id. at *4. The Magistrate Judge held that “[h]aving twice been

denied leave, Plaintiff cannot proceed with a successive habeas

petition, whether cloaked in a § 1983/Bivens action or presented

in a Rule 60(b) motion.” Id.

The Magistrate Judge also found that the complaint was

barred by Heck v. Humphrey,

(1994). The court

noted that “Heck mandates dismissal of any § 1983/Bivens suit

that would ‘necessarily imply’ the invalidity of a conviction;

such a claim is not cognizable under § 1983/Bivens unless and

until a challenge to the conviction is favorably resolved.”

Villar,

, at *4. The court recommended dismissal

of the original complaint, stating “[a]t bottom, Plaintiff had

filed a third and successive § 2255 petition masquerading as a §

1983/Bivens civil action, which is clearly prohibited by

(b)(1) and (b)(3)(A).”

The Magistrate Judge also recommended denying Villar’s

motion to amend his complaint as futile because the proposed

amended complaint was based on the same allegations as those set

forth in the original complaint. See id. at *5-6. The

Magistrate Judge noted that Villar’s proposed amended complaint

4 Bivens v. Six Unknown Named Agents,

(1971).

5 contained “new material that could be interpreted as an

administrative appeal from the FBI’s withholding of documents

from the set produced in response to his FOIA request.” Id. at

*6. The Magistrate Judge stated that “to the extent Plaintiff

wishes to file an administrative appeal in an appropriate

federal district court from the FBI’s partial denial of his FOIA

request, this recommendation does not restrict his ability to

bring a separate civil action for that claim, subject to all

defenses available to any defendant that he sues.” Id. On

September 28, 2015, the district court adopted the Magistrate

Judge’s R&R. See Villar v. United States, No. 14-cv-491-WES,

(D.N.H. Sept. 28, 2015).

II. Procedural Background

Villar, proceeding pro se, filed this action on July 10,

2015, asserting claims against the FBI, David Hardy, and Brian

Keefe arising out of the FBI’s alleged failure to provide

records under FOIA, as he had alleged in Villar IV. The

complaint also states that Villar is asserting claims against

defendants in their official and individual capacities under §

1983 and Bivens. In his prayer for relief, however, Villar

requests only that the court order defendants to provide copies

of records he had requested under FOIA regarding Harrington, the

witness who testified against him at his criminal trial.

6 Because Villar was pro se at the time he filed this action,

his complaint was subject to preliminary review pursuant to 28

U.S.C. § 1915A(a) and LR 4.3(d)(1).5 On preliminary review, the

Magistrate Judge found that the complaint asserted a claim under

FOIA and ordered service of the complaint on defendants. See

doc. no. 10. The Magistrate Judge did not address the

complaint’s allegations purporting to assert claims against

defendants in their official and individual capacities under §

1983 and Bivens.

Defendants now move to dismiss Villar’s complaint to the

extent it purports to assert any constitutional tort claims

against any defendant, because such claims are not cognizable

for alleged violations of FOIA. See doc. no. 15. Defendants

also argue that the court should dismiss any official capacity

claims against the individual defendants for alleged violations

of FOIA because they are not proper defendants to such a claim.

Villar objects to defendants’ motion to dismiss, and also

moves to amend his complaint. See doc. no. 29. Villar’s

proposed amended complaint adds a claim for money damages,

including punitive damages, and attorneys’ fees.6 See doc. no.

5 Villar is now represented by counsel, who filed an appearance on April 19, 2016.

6 At the time Villar filed his motion to amend, he was still proceeding pro se.

7 29-1. Defendants object on futility grounds, arguing that the

proposed amendment would be futile for the same reasons set

forth in their motion to dismiss the original complaint.

In addition, Villar has filed a motion for a “subpoena

duces tecum” (doc. no. 20), in which he asks the court to order

defendants to submit for in camera review the documents which

they withheld from his FOIA request. Defendants object.

Villar has since obtained counsel to represent him in this

litigation and filed a “supplemental response” to the

outstanding filings, in which he addressed the merits of each

pending matter. See doc. no. 36. Defendants have filed a reply

to the supplemental response (doc. no. 37), and Villar then

filed a “surreply” (doc. no. 39). The court addresses each

pending motion below.

I. Motion to Amend

Villar moves to amend his complaint under Federal Rule of

Civil Procedure 15(a) to add claims for punitive and

compensatory damages, and for attorneys’ fees.7 Defendants

object, arguing, inter alia, that amendment would be futile

7 The supplemental response improperly attempts to add additional allegations to the proposed amended complaint. The court considers only those allegations included in the proposed amended complaint. See Frappier v. Countrywide Home Loans, Inc.,

(1st Cir. 2014).

8 because any § 1983/Bivens claim is barred under Heck. Villar

disagrees.

In response to a motion for leave to amend a complaint,

“[t]he court should freely give leave when justice so requires.”

Fed. R. Civ. P. 15(a)(2).8 To decide if justice requires leave

to amend, the court considers all of the circumstances to

“balance [] pertinent considerations.” Palmer v. Champion

Mortg.,

(1st Cir. 2006). Generally, the

motion should be allowed in the absence of “any apparent or

declared reason—such as undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice

to the opposing party by virtue of allowance of the amendment,

[or] futility of amendment.” Foman v. Davis,

(1962).

An amendment is futile if it cannot survive the standard

applicable to motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6). Platten v. HG Bermuda Exempted Ltd.,

(1st Cir. 2006). In considering a motion under

Rule 12(b)(6), the court assumes the truth of the properly

8 In his motion to amend, Villar appears to argue that he is entitled to amend his complaint as a matter of course under Rule 15(a)(1). That rule does not apply, however, as Villar filed his motion to amend more than 21 days after defendants filed their motion to dismiss. Rule 15(a)(2) applies to Villar’s motion.

9 pleaded facts and takes all reasonable inferences from the facts

that support the plaintiff’s claims. Mulero-Carrillo v. Roman-

Hernandez,

(1st Cir. 2015). Based on the

properly pleaded facts, the court determines whether the

plaintiff has stated “a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly,

(2007).

Here, Villar’s proposed § 1983/Bivens claim alleges that

defendants violated his due process rights both because they

failed to disclose evidence favorable to him at his criminal

trial and allowed false evidence to be admitted against him at

trial. Such a claim “effectively challenges the legitimacy of

Plaintiff’s underlying conviction.” Reeves v. United States,

No. 1:16-cv-193-NT,

, at *2 (D. Me. May 3, 2016),

report and recommendation adopted, No. 1:16-cv-193-NT,

(D. Me. June 7, 2016). “The Heck Court ruled in no

uncertain terms that when a section 1983 claimant seeks ‘to

recover damages for allegedly unconstitutional conviction or

imprisonment,’ he ‘must prove that 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.’” Figueroa v. Rivera,

(1st Cir. 1998) (quoting Heck, 512 U.S. at 486–87).

Villar makes no such showing here.

10 In his surreply, Villar asserts that his claim is not

barred by Heck because he is challenging the procedures used by

defendants during his criminal trial. He argues that Heck

allows a § 1983 damages claim where a plaintiff seeks damages

“for using the wrong procedures, not for reaching the wrong

result . . . .” Heck,

.

Villar’s proposed amended complaint makes no mention of

procedures used during his criminal trial.9 Rather, Villar

alleges that defendants wrongfully withheld evidence and

submitted false evidence against him, which resulted in his

conviction. Heck bars such a claim. See Skinner v. Switzer,

(2011) (holding that claims based on Brady

violations “are outside the province of § 1983”); Heck,

(claims that defendants “knowingly destroyed” exculpatory

evidence and caused “an illegal and unlawful voice

identification procedure” to be used at plaintiff's trial were

barred until the conviction was reversed or otherwise declared

invalid); Evans v. Lopez, No. 98 C 2077,

, at *5

(N.D. Ill. May 12, 2000) (“Heck [] bars any claim that the

9 Examples of challenges to procedures which are not barred by Heck include a challenge to state parole procedures, such as a parole board’s consideration of harsher parole guidelines implemented after defendants’ sentences, see Wilkinson v. Dotson,

(2005), and a claim that a criminal defendant is entitled to a hearing prior to sentencing, McBride v. Cahoone,

(E.D. Pa. 2011).

11 defendants falsified evidence, withheld evidence, or otherwise

corrupted the judicial process.”).

Even if Villar had alleged that submitting false evidence

and withholding exculpatory evidence during his criminal trial

were procedural defects, Heck would still bar the claim. A

claim based on a procedural defect is permitted only where the

alleged “procedural defect [does] not ‘necessarily imply the

invalidity of’” a conviction. Spencer v. Kemna,

(1998) (quoting Heck,

). Claims based on

allowing false evidence to be used at trial and refusing to turn

over exculpatory evidence would call the validity of Villar’s

conviction into question, and are therefore barred by Heck.

See, e.g., Spuck v. Clearfield Cty., Pa., 540 Fed. App’x 73, 74-

75 (3d Cir. 2013).

As a result, the proposed amendment would be futile and the

motion to amend (doc. no. 29) is denied.10

II. Motion to Dismiss

The court turns now to defendants’ motion to dismiss

Villar’s original complaint. Defendants first move to dismiss

Villar also argues that he should be allowed to amend his 10

complaint to seek attorneys’ fees for defendants’ alleged FOIA violation. To the extent Villar “substantially prevail[s]” on his FOIA claim asserted in his original complaint, he may be entitled to recover attorneys’ fees subject to the court’s discretion, regardless of whether he specifically seeks such fees in his complaint.

(a)(4)(E)(i).

12 the constitutional tort claims Villar alleges in his original

complaint. Defendants next argue that the FOIA claim should be

dismissed against Hardy and Keefe, because they are not the

proper defendants.

A. Constitutional Claims

In his supplemental response, Villar states with regard to

defendants’ motion to dismiss the original complaint:

Defendants argue that there is no Bivens claim for violation of the FOIA—Plaintiff does not plead in his complaint that there is. Plaintiff pleads in his complaint that the Bivens claim relates to another subject of the complaint, that Defendants denied him due process by withholding evidence favorable to him at trial.

Doc. no. 36 at 3. Thus, Villar makes clear that his purported

constitutional tort claims in his original complaint are based

on defendants’ alleged violation of his due process rights at

his criminal trial, the same claim he alleges in his proposed

amended complaint. For the reasons discussed above, those

claims are barred by Heck and are dismissed.

B. FOIA Claim

Defendants next contend that the court should dismiss the

FOIA claims against Hardy and Keefe because they are not proper

defendants to a FOIA claim. FOIA confers jurisdiction over the

district courts to “enjoin the agency from withholding agency

records and to order the production of any agency records

13 improperly withheld from the complainant.”

(a)(4)(B). Section 552(f) defines an “agency” as “any

executive department . . . or other establishment in the

executive branch of the Government (including the Executive

Office of the President), or any independent regulatory agency.”

§ 552(f). Therefore, federal agencies, and not individual

officials, are the only proper defendants in a FOIA action. See

Naoum v. Chertoff, No. 06-12078-GAO,

, at *1 (D.

Mass. Feb. 1, 2007) (collecting cases); see also Bedgood v.

Mabus, No. 15cv454 WQH (BGS),

, at *4 (S.D. Cal.

June 8, 2015) (collecting cases). For that reason, Hardy and

Keefe are not proper defendants to Villar’s FOIA claim.

Accordingly, defendants’ motion to dismiss (doc. no. 15) is

granted.

III. Motion for Subpoena Duces Tecum

Villar moves for a “subpoena duces tecum,” requesting that

the court conduct an in camera review of the documents he

alleges defendants have wrongfully withheld. Defendants object.

FOIA’s “basic purpose is to ensure an informed citizenry,

vital to the functioning of a democratic society, or, stated

more specifically, to open agency action to the light of public

scrutiny.” Church of Scientology Int’l v. U.S. Dep’t of

Justice,

(1st Cir. 1994) (internal quotation

14 marks and citations omitted). FOIA requires governmental

agencies to disclose their records to the public upon request,

unless at least one of several enumerated exemptions applies.

(a)(3) and 552(b). An agency seeking to withhold

materials requested under FOIA bears the burden of proving that

those materials are exempt from disclosure. Orion Research Inc.

v. EPA,

(1st Cir. 1980) (citing

(a)(4)(B)).

Although FOIA authorizes courts to conduct in camera review

of challenged documents, “[t]he legislative history indicates

that, before in camera inspection is ordered, an agency should

be given the opportunity to demonstrate by affidavit or

testimony that the documents are clearly exempt from disclosure,

and that the court is expected to accord substantial weight to

the agency’s affidavit.” Bell v. United States,

(1st Cir. 1977) (internal quotation marks and citation

omitted). To satisfy its burden without submitting undisclosed

records for in camera review, the agency “must furnish a

detailed description of the contents of the withheld material

and of the reasons for nondisclosure, correlating specific FOIA

exemptions with relevant portions of the withheld material.”

Orion Research,

. The agency’s justification for

the withholding must be sufficient to give the requester a

“meaningful opportunity to contest, and the district court an

15 adequate foundation to review, the soundness of the

withholding.” Church of Scientology,

(internal

quotation marks and citations omitted). Often, the written

explanation will be accompanied by a so-called “Vaughn index,”

listing each document the government seeks to preclude from

disclosure, along with a specific explanation for the

withholding.11 See N.H. Right to Life v. U.S. Dep’t of Health &

Human Servs.,

, 48 n.3 (1st Cir. 2015).

Here, defendants have not yet responded to Villar’s

complaint and are required to file an answer within 21 days of

the date of this order. See doc. no. 21 (Magistrate Judge’s

Order dated February 11, 2016). Thus, defendants have not yet

had an opportunity to demonstrate by affidavit or testimony that

the documents are clearly exempt from disclosure. As set forth

in the February 11, 2016 order, the Magistrate Judge will hold a

status conference after defendants file their answer, at which

time the Magistrate Judge will set forth the appropriate

deadlines in this case. See id. at 2-3. Therefore, Villar’s

motion seeking in camera review of the withheld documents is

premature at this time. Accordingly, the motion is denied,

without prejudice to renew at an appropriate time.

11The term derives from the oft-cited FOIA case, Vaughn v. Rosen,

(D.C. Cir. 1973).

16 Conclusion

For the foregoing reasons, defendants’ motion to dismiss

(doc. no. 15) and motion for extension of time (doc. no. 31) are

granted. Plaintiff’s motion for a subpoena duces tecum (doc.

no. 20) is denied without prejudice, and his motion to amend

complaint (doc. no. 29) is denied. Plaintiff’s motion to amend

his objection (doc. no. 30) is construed as an addendum to his

earlier filings, and is terminated as a motion.

The FBI is the only remaining defendant in this case.

Defendant shall file an answer to Villar’s complaint on or

before September 6, 2016.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

August 15, 2016

cc: T. David Plourde, Esq. Linda B. Sullivan Leahy, Esq.

17