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Bouchard v. Thomson

United States District Court, N.D. New York

April 4, 2018

TAMARA B. THOMSON, Assistant United States Attorney for the Northern District of New York, et al., Defendants.


          Lawrence E. Kahn U.S. District Judge


         Plaintiff 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.


         A. Factual History

         The 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 Cir. 1991))).

         In July 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.

         Plaintiff 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.

         Plaintiff 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.

         B. Procedural History

         Plaintiff 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 11-12.


         To 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, the-defendant-unlawfully-harmed-me accusation.” 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. 2006).

         IV. ...

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