United States District Court, W.D. Virginia, Lynchburg Division
Paul Valois, James River Legal Associates, Lynchburg,
Virginia, for Plaintiff.
G. Barger, Greenberg Traurig, LLP, McLean, Virginia, for
Defendant Ashley Neese.
OPINION AND ORDER
P. Jones United States District Judge.
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.
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.
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
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.
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.
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,  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
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.
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
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. 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.
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.
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 ...