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Burns v. Cook

United States District Court, W.D. Virginia, Lynchburg Division

February 12, 2019


          M. Paul Valois, James River Legal Associates, Lynchburg, Virginia, for Plaintiff.

          David G. Barger, Greenberg Traurig, LLP, McLean, Virginia, for Defendant Ashley Neese.


          James P. Jones United States District Judge.

         In this action for violation of civil rights under 42 U.S.C. § 1983, plaintiff Les Christopher Burns claims that one of the defendants, Ashley Neese, violated his constitutional rights when, as an Assistant United States Attorney for the Western District of Virginia, she allegedly manufactured false evidence and destroyed evidence during an investigation and prosecution of his alleged involvement in narcotics distribution. Neese has moved to dismiss Burns' action against her for failure to state a claim upon which relief can be granted, contending that she is entitled to either absolute or qualified immunity, or in the alternative that a Bivens-type remedy is not available in this context. For the reasons that follow, I will grant Neese's motion.


         The Amended Complaint alleges the following facts as to Burns' claims against Neese, which I must accept as true for the purpose of deciding the Motion to Dismiss.

         Les Christopher Burns has long suffered from an addiction to prescription medications and opiates. As of 2012, Burns frequently bought and traded small quantities of pills with other addicts to sustain his addiction, but he did not sell drugs for financial gain, and he did not administer drugs to anyone else.

         On October 26, 2012, Town of Bedford Police Officer Sarah Dryden stopped Burns' vehicle on suspicion that he was driving under the influence. During the traffic stop, Officer Dryden discovered prescription medications and drug paraphernalia in Burns' vehicle. In lieu of arresting Burns, Officer Dryden referred him to Bedford County Deputy Sheriff Christopher Lee Cook, who was involved in Operation Pain Train, an investigation into the illegal distribution of prescription medications in Bedford, Virginia.

         Deputy Sheriff Cook knew that Burns was a low-level prescription medication user who was familiar with some of Operation Pain Train's targets, so he began using Burns as a confidential informant. As an informant, Burns participated in a number of controlled narcotics buys for Deputy Sheriff Cook. During one of the controlled buys, a memory card from an audio recorder was lost, and Deputy Sheriff Cook accused Burns of removing and disposing of it, which Burns denies. Burns alleges that Deputy Sheriff Cook became enraged at him and told him that he needed to admit to stealing the memory card or he would seek federal charges against Burns and his wife. Thereafter, Burns told Deputy Sheriff Cook that the controlled buys were jeopardizing the safety of his family and he could no longer do them.

         On March 21, 2013, a grand jury indicted Burns on charges of distributing and conspiring to distribute narcotics. Deputy Sheriff Cook arrested Burns on March 28, [1] and Neese, then an Assistant United States Attorney, was also present during the arrest. After the arrest, Deputy Sheriff Cook and Neese interrogated Burns, who falsely confessed to removing and disposing of the memory card. He also truthfully admitted that he had abused narcotics and shared them with other addicts, but he did not admit to administering narcotics or distributing them for profit. Neese recorded the interrogation on her phone, and the interrogation room also had audio and video recording equipment. However, either Deputy Sheriff Cook or Neese lost or destroyed the recording. On December 19, 2013, a grand jury returned a Superseding Indictment charging Burns only with conspiring to distribute narcotics.

         Burns alleges that in order to obtain the original and superseding Indictments, Neese and Deputy Sheriff Cook solicited false testimony from Burns' alleged co-conspirators that he had distributed narcotics for financial gain, and they threatened and pressured witnesses into falsely testifying that Burns had distributed large quantities of narcotics for financial gain and injected them with narcotics, without reason or probable cause to believe he had done so. Burns also alleges that Neese advised and assisted Cook in procuring false evidence against Burns before he was indicted.

         At Burns' jury trial on the Superseding Indictment, several of his purported co-conspirators testified falsely that Burns had distributed narcotics. This testimony deviated substantially from earlier statements they had made before Neese and Deputy Sheriff Cook had allegedly threatened and pressured them into testifying that Burns had distributed narcotics for profit. Burns was convicted of conspiring to distribute narcotics, and the court sentenced him to 136 months imprisonment.

         Burns appealed his conviction, and during the pendency of his appeal, he discovered the partial extent of Neese and Deputy Sheriff Cook's alleged misconduct. Based on this discovery, he moved to dismiss the Superseding Indictment or for a new trial. The court found that Neese had intentionally withheld exculpatory evidence from the defense and the court, and it granted Burns' motion for a new trial.[2] New prosecutors were assigned to the case, and they moved to dismiss the Superseding Indictment with prejudice. The court granted the motion on July 21, 2016. Burns had been incarcerated continuously from his arrest on March 28, 2013, until his release on July 21, 2016.

         Burns alleges he suffered damages because of his prosecution and confinement, including loss of liberty, fear, apprehension, stress, depression, loss of consortium, alienation from his wife and children, humiliation, and severe mental anguish.

         Count Two of Burns' Amended Complaint alleges that Neese violated his Fifth Amendment due process rights when she manufactured, procured, and used false evidence against him, advised Deputy Sheriff Cook to do the same, and when she destroyed the recordings of Burns' interrogation. Count Four of the Amended Complaint alleges that Neese and Deputy Sheriff Cook conspired to violate Burns' Fifth and Fourteenth Amendment due process rights, and his Fourth amendment right to be free from the deprivation of liberty, when they engaged in the above conduct. Burns seeks monetary damages and ...

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