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Drimal v. Makol

United States District Court, D. Connecticut

July 6, 2016

ARLENE VILLAMIA DRIMAL, Plaintiff,
v.
DAVID MAKOL, JAN TRIGG, PAULINE TAI, FRANK LOMONACO, DAVID J. FORD, EDMUND ROM, KEVIN RIORDAN, ADRIAN BUSBY, BRIAN HARKINS, JOANN MAGUIRE, MARIA A. FONT, MARTHA M. BERDOTE, THOMAS J. D'AMICO, MARK MUNSTER, CHRISTOPHER DEGRAFF, S. MENDOZA- PENAHERRERA, Defendants.

          MEMORANDUM OF DECISION ON DEFENDANTS' MOTIONS TO DISMISS THE AMENDED COMPLAINT

          WARREN W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Arlene Villamia Drimal alleges that defendants, sixteen FBI agents, intercepted intimate personal telephone conversations between plaintiff and her husband in violation of Title III, 18 U.S.C. § 2510 et seq.; Connecticut General Statutes § 52-570d; and the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution.

         Defendants argue that they are entitled to qualified immunity and that plaintiff's allegations are impermissibly conclusory. In addition, defendants move to dismiss plaintiff's constitutional claims as precluded by the existence of a statutory remedy. Finally, defendants contend that Connecticut General Statutes § 52-570d is inapplicable to the circumstances of this case. For the following reasons, defendants' motions will be granted in part and denied in part.

         BACKGROUND

         As part of an investigation into a conspiracy to commit securities fraud, the FBI performed an authorized wiretap on the telephone of plaintiff's husband. The Honorable Richard Sullivan tried the underlying criminal case. See U.S. v. Goffer, 756 F.Supp.2d 588 (S.D.N.Y. 2011). There, plaintiff's husband moved to suppress the entire wiretap on the basis that the government had failed to properly minimize marital calls. From November 16, 2007, to January 15, 2008, agents intercepted approximately 180 calls between plaintiff and her husband. "None of these calls provided agents with any incriminating evidence relating to the charges in [the underlying criminal case]. To the contrary, [plaintiff's] marital conversations dealt almost exclusively with personal and family matters. Indeed, in several calls agents listened as [plaintiff and her husband] carried on discussions of a deeply intimate nature." Goffer, 756 F.Supp.2d at 591. Although Judge Sullivan found some of defendants' monitoring troublesome, he denied suppression of the wiretap evidence.

         After this Court declined to dismiss plaintiff's original complaint, the Second Circuit remanded based on two deficiencies in this Court's prior ruling. First, the Court should have been more stringent in evaluating the plausibility of plaintiff's wiretap claims. Plaintiff asserted in a conclusory fashion that intercepting marital calls violated Title III without any reference to a duty to minimize. To survive a motion to dismiss, plaintiff's amended complaint must include facts alleging how each defendant failed to comply with his or her duty to minimize. Second, in evaluating defendant's claims of qualified immunity, this Court ruled on all the defendants as a single group instead of evaluating plaintiff's claims against each defendant individually. While issues related to qualified immunity frequently must await a motion for summary judgment, the Second Circuit found that "[a] putative amended complaint, pleaded with the requisite specificity based on the hearing before Judge Sullivan, likely would enable the district court to address qualified immunity issues, at least in part, at the pleading stage." The Second Circuit took judicial notice of government exhibit 30, featured at the suppression hearing in the criminal case, which makes it apparent that different defendants responded differently to their duty to minimize. This Court now takes judicial notice of government exhibit 30 for purposes of its qualified immunity analysis.

         Qualified Immunity

         Qualified immunity shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To lose immunity, an official must violate a right, the contours of which are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).

         The Second Circuit held that the district court, in its qualified immunity analysis, should assess the "reasonableness of the agents' minimization efforts as they relate to each defendant." Drimal v. Tai, 786 F.3d 219, 221 (2d Cir. 2015). The Court must evaluate each agent's minimization efforts under an "objective reasonableness" standard to determine whether each defendant "would understand that what he is doing violates" Title III's minimization requirement. See Scott v. United States, 436 U.S. 128, 138 (1978); Anderson, 438 U.S. at 640.

Because of the necessarily ad hoc nature of any determination of reasonableness, there can be no inflexible rule of law which will decide every case. The statute does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to "minimize" the interception of such conversations. Whether the agents have in fact conducted the wiretap in such a manner will depend on the facts and circumstances of each case.
***
Other factors may also play a significant part in a particular case. For example, it may be important to determine at exactly what point during the authorized period the interception was made. During the early stages of surveillance the agents may be forced to intercept all calls to establish categories of nonpertinent calls which will not be intercepted thereafter. Interception of those same types of calls might be unreasonable later on, however, once the nonpertinent categories have been established and it is clear that this particular conversation is of that type. Other situations may arise where patterns of nonpertinent calls do not appear. In these circumstances it may not be unreasonable to intercept almost every short conversation because the determination of relevancy cannot be made before the call is completed.

Scott, 436 U.S. at 139-41.

         At the initial pleadings stage of this case, the facts and circumstances of defendants' interception of plaintiff's calls have not been fully explored by this Court. Nevertheless, prior to commencement of the wiretap, it should have been evident that the marital calls at issue fall into an established category of nonpertinent calls, as the privileged communications were apparently invariably innocent and did not deal with ongoing violations of law. Indeed, the wiretap instructions provided to the FBI by the Supervising Assistant ...


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