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Wellington v. Daza

United States District Court, D. New Mexico

January 30, 2019

DAVID WELLINGTON, Plaintiff,
v.
FERNANDO DAZA, SPECIAL AGENT HAND, SPECIAL AGENT MARSHALL, UNKNOWN AGENT 1, UNKNOWN AGENT 2, UNKNOWN AGENT 3 UNKNOWN AGENT 4, UNKNOWN AGENT 5, Defendants.

          MEMORANDUM ORDER AND OPINION

         On August 15, 2018, Plaintiff David Wellington filed a motion asking the court to enjoin the Government from retaining or using items seized under a search warrant, arguing agents obtained the items the items unconstitutionally.[1] The Government responded on behalf of Defendants Special Agent (SA) Fernando Daza, SA Gregory Hand, and SA Sean Marshall, [2] and Plaintiff replied.[3]

         Because Plaintiff has not met his burden in showing a preliminary injunction is necessary, the Court will deny Plaintiff's Motion.

         I. BACKGROUND AND PROCEDURAL HISTORY

         The following facts are undisputed except where noted. On March 10, 2017, SA Daza gave an Affidavit and application to United States Magistrate Judge William P. Lynch to obtain a warrant to search the home of Plaintiff on 2124 Altura Verde Lane, Albuquerque NM. Compl. (Doc. 1), Ex. A, p. A-1. Magistrate Judge Lynch granted the application. The application for the warrant indicates that the purpose of the warrant was to seize “fruits and instrumentalities of crimes relating to violations of 26 U.S.C. § 7201 (Attempt to Evade Taxes) and 18 U.S.C. § 371 (Conspiracy) for the time-period of January 1, 2005 through the present. Id. at A-4. Included in the list of the items to be seized was “[t]ax defier paraphernalia to include books, instructions manuals and how to pamphlets.” Id. at A-5.

         Agents executed the warrant on March 14, 2017. Id. at 5. During the search, the agents seized paper documents, computers, and the electronic records stored on the computers. Compl., Ex. B, General Inventory at B-1-B-4. The parties dispute whether the Affidavit was attached to the Warrant when the agents executed it.

         On April 18, 2017, Plaintiff filed a motion for return of his property under Fed. R. Crim. P. 41(g) in miscellaneous case number 17-MR-086 assigned to the warrant application. On October 10, 2017, Magistrate Judge Jerry H. Ritter, denied the motion, after concluding that a United States Magistrate Judge does not have jurisdiction to hear a Rule 41(g) motion.[4] Plaintiff appealed. On January 8, 2018, the Tenth Circuit declined to review Magistrate Judge Ritter's Order, finding that it did not have jurisdiction to review an order entered by a magistrate judge unless the magistrate judge was proceeding with the consent of the parties after designation by a district judge under 28 U.S.C. § 636(c).[5] The Tenth Circuit declined to consider Plaintiff's request for a writ of mandamus.

         While Plaintiff's 41(g) motion wound its way through the courts, on July 12, 2017, Plaintiff filed this civil Complaint.[6] The Complaint lists seven causes of action alleging violations of Plaintiff's First and Fourth Amendment rights. Each claim relies on Plaintiff's premise that the warrant executed at Plaintiff's house was a “general warrant” unsupported by probable cause.[7] According to Plaintiff, the warrant further violated his First Amendment rights because the federal agents seized publications, documents, and other information about his associates based solely on the “tax defier” ideas these items expressed. In response to the Complaint, Defendants sought and received an Order from the Court staying the litigation and giving them until April 1, 2018 to answer the Complaint.[8] The Stay Order allowed the Affidavit to remain sealed.

         On February 9, 2018, Plaintiff filed a motion seeking to consolidate the 41(g) case with his Complaint. The motion was fully briefed.[9] The Court denied the motion, [10] finding that it did not have jurisdiction over the 41(g) case. The Court also observed that even if it had jurisdiction over the 41(g) case, the case had been mooted by the return of the Plaintiff's property. Denial Order (Doc. 38) at pp. 4-5.

         On April 6, 2018, Plaintiff filed a motion asking the Court to grant him partial summary judgment on his claims that the search warrant was facially invalid and that the Government did not have qualified immunity.[11] The Court denied Plaintiff's motion.[12] In the Summary Judgment Order the Court found that the warrant was not facially invalid as it satisfied the particularity requirement of the Fourth Amendment. Summary Judgment Order (Doc. 46) at 16-17. Because the Court did not have the sealed Affidavit that accompanied the application for the warrant, the Court reserved ruling on the issue of whether the warrant was overbroad and supported by probable cause. Id. at 24. The Court further found that the seizure of items specifically related to tax evasion and conspiracy did not violate Plaintiff's First Amendment rights even when described as “tax defier paraphernalia.” Id. at 20-24. Finally, the Court ordered the Government to answer Plaintiff's Complaint, which it did.[13]

         II. LEGAL STANDARD

         “As a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” SCFC ILC, Inc. v. Visa USA., 936 F.2d 1096, 1098 (10th Cir. 1991) (internal citation omitted) (overruled on other grounds by O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc)). A movant must show four factors to establish a right to a preliminary injunction: “(1) [he] is substantially likely to succeed on the merits; (2) [he] will suffer irreparable injury if the injunction is denied; (3) [his] threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest.” Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012) (alterations in original) (quoting Beltronics USA, Inc. v. Midwest Inventory Distribution, L.L.C., 562 F.3d 1067, 1070 (10th Cir. 2009)).

         The following three types of preliminary injunction are specifically disfavored: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover after a full trial on the merits. O Centro Espirita Beneficiente Uniao Do Vegetal, 389 F.3d at 977. A mandatory preliminary injunction is one that requires the “nonmoving party to take affirmative action”. Attorney Gen. of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009). “Because mandatory preliminary injunctions are disfavored, before a district court may grant such relief, the movant must make a heightened showing of the above four factors.” Id. (further citation omitted); see also RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1209 (10th Cir. 2009) (observing that the burden is on a plaintiff to show that the exigencies of the case needed extraordinary preliminary injunction relief).

         III. ANALYSIS

         Plaintiff rests his request for an injunction on two premises: 1) the search warrant was invalid because it authorized or allowed the seizure of First Amendment protected materials; and 2) the search warrant and/or the Defendants' execution of it violated Plaintiff's First or Fourth Amendment rights. Plaintiff asks the Court to enjoin the Defendants from using or possessing First Amendment protected writings, items implicating his First Amendment associational rights, and items videotaped or photographed during the search that involve his right to privacy.[14]Plaintiff asks the Court to order Defendants to return the originals of all documents seized under the search warrant and to provide any video recordings or photographs taken during the search. Finally, Plaintiff asks the Court to prohibit the government from using any of the seized material in a criminal proceeding. The relief Plaintiff requests asks in ...


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