United States District Court, N.D. New York
MICHAEL G. BOUCHARD, Plaintiff,
TAMARA B. THOMSON, Assistant United States Attorney for the Northern District of New York, et al., Defendants.
DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
Michael Bouchard, proceeding pro se, brings this
action against Assistant United States Attorneys Tamara
Thomson and Michael Olmsted, former United States Attorney
Richard Hartunian, and the United States Department of
Justice (“DOJ”), and alleges that Defendants
retaliated against him in violation of the First Amendment of
the United States Constitution. Dkt. No. 5 (“Amended
Complaint”). Defendants moved to dismiss the Amended
Complaint. Dkt. Nos. 8 (“Motion”), 8-2
(“Memorandum”). Plaintiff responded to the
Motion, Dkt. No. 13 (“Response”), and Defendants
filed a reply, Dkt. No. 14 (“Reply”). For the
following reasons, Defendants' Motion is granted.
facts in this section are drawn from the Amended Complaint,
and are taken as true for the purpose of deciding
Defendants' Motion. Cooper v. Parsky, 140 F.3d
433, 440 (2d Cir. 1998). The Court also takes judicial notice
of the records from Plaintiff's prior criminal
proceeding. See Frigerio v. United States, No.
10-CV-9086, 2011 WL 3163330, at *6 (S.D.N.Y. July 22, 2011)
(“[C]ourts routinely take judicial notice of documents
filed in other courts . . . not for the truth of the matters
asserted in other litigation, but rather to establish the
fact of such litigation and related filings.” (citing
Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d
2012, Plaintiff was indicted in the United States District
Court for the Northern District of New York and charged with
one count of conspiracy, twenty-two counts of bank fraud, and
one count of false statement in connection with alleged
mortgage fraud. Indictment, United States v.
Bouchard, No. 12-CR-381 (N.D.N.Y. July 25, 2012), ECF
No. 1. Around this time, Plaintiff sent a letter to
then-Attorney General Eric Holder asking that Holder appoint
a special prosecutor to investigate alleged wrongdoing by
various judges and attorneys in the Northern District of New
York, including Olmsted and Hartunian. Am. Compl. ¶ 10.
The letter, Dkt. No. 1-1 (“Letter”), proclaims
Plaintiff's innocence and accuses these judges and
attorneys of entering into a conspiracy to prosecute him.
Plaintiff posted the Letter on his website, uploaded a
summary of it to YouTube, and “arranged for the
dissemination of two press releases regarding the
letter.” Am. Compl. ¶ 10.
alleges that, during his criminal trial in November 2012, his
attorney told him that Olmsted and Thomson were upset about
the Letter and “wanted [it] to come down from
[Plaintiff's] web-site.” Id. ¶ 11. On
November 30, 2012, the jury found Plaintiff guilty of
conspiracy, two counts of bank fraud, and false statement,
and acquitted him of the remaining counts. Jury Verdict,
Bouchard, No. 12-CR-381, ECF No. 38. On April 24,
2013, Hartunian, Thomson, and Olmsted filed a sentencing
memorandum seeking a sentence “enhancement for
[o]bstruction of [j]ustice based upon” Plaintiff
“having inappropriate contact with witnesses” and
for writing the Letter. Sentencing Mem., Bouchard,
No. 12-CR-381, ECF No. 60. At Plaintiff's sentencing
hearing on October 22, 2014, Thomson engaged in a
“vindictive tirade, ” stating that Plaintiff
“has never actually accepted responsibility” for
mortgage fraud, and referencing “the YouTube
videos” and the Letter as support for this position.
Am. Compl. ¶ 11.
maintains that Defendants' actions “chilled the
exercise of [his] First Amendment right.” Id.
¶ 12. Specifically, Plaintiff states that, after
Defendants told his attorney that they were upset about his
Letter, he “acquiesced to [their] demands and”
removed the Letter from his website, and “refrained
from issuing any further press releases, ”
“posting any further information on Youtube, ” or
“sending any more letters to the Attorney
General.” Id. ¶ 13. Moreover, during his
sentencing hearing in October 2014, Plaintiff decided against
“freely speak[ing] out and discuss[ing] a detailed
chronology of the criminal acts of the defendants and other
bad actors.” Id.
commenced this action on October 18, 2017. Dkt. No. 1
(“Complaint”). He filed the Amended Complaint on
December 5, 2017, Am. Compl., naming Thomson, Olmsted,
Hartunian, and the DOJ as defendants, and alleging, pursuant
to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), that Defendants'
response to the Letter, Plaintiff's YouTube videos, and
his press releases constituted retaliation in violation of
the First Amendment, id. ¶¶ 12-13.
Defendants moved to dismiss the Amended Complaint, Plaintiff
opposed the Motion, and Defendants filed a Reply. Plaintiff
seeks $10, 000, 000 in damages from each defendant, and an
additional $10, 000, 000 in punitive damages. Am. Compl. at
survive a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a “complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court
must accept as true the factual allegations contained in a
complaint and draw all inferences in favor of the nonmoving
party. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50
(2d Cir. 2006). Plausibility, however, requires “enough
fact[s] to raise a reasonable expectation that discovery will
reveal evidence of [the alleged misconduct].”
Twombly, 550 U.S. at 556. The plausibility standard
“asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Id. (quoting Twombly, 550 U.S. at 555).
Where a court is unable to infer more than the mere
possibility of the alleged misconduct based on the pleaded
facts, the action is subject to dismissal. Id. at
678-79. Finally, because Plaintiff brings this action pro
se, the Amended Complaint “must be construed
liberally and interpreted ‘to raise the strongest
arguments that they suggest.'” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.