Lessard v. Lowell, MA Police Department et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Steven Lessard
v. Civil No. 21-cv-1074-JL
Lowell MA Police
Department, et al.
Report and Recommendation
Steven Lessard, who is incarcerated and is proceeding pro
se, brought claims in New Hampshire state court against the
Lowell Police Department, several of its officers, and two Task
Force Officers with the United States Drug Enforcement Agency
(“DEA”), that arose from the circumstances of Lessard’s arrest.1
The DEA defendants removed the action to this court and moved to
substitute the United States as the proper party. Lessard did
not file a response to the motion.2 The motion is referred to
the undersigned for a report and recommendation.
Background
Police officers executed a search warrant at Lessard’s
apartment in March of 2018 and found fentanyl, cash, and
firearms. United States v. Lessard, --- F. 4th ---, 2022 WL
1617205, at *1 (1st Cir. May 23, 2022). In September of 2019,
1 Lessard identifies the DEA officers as New Hampshire DEA
officers.
2 Lessard sought and was granted additional time to respond.
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Lessard pleaded guilty to conspiracy to possess and distribute
fentanyl. Id. at *2. He was sentenced to 150 months of
incarceration. Id. His sentence was affirmed on appeal. Id.
at *5.
Lessard alleges in this complaint in this case that the
police officers and DEA officers entered his home during the
night while he was sleeping. Doc. 1-1, at 7. He further
alleges that Lowell police officers assaulted him in the process
of handcuffing him, dragged him, and beat him. He alleges that
he was choked and thrown into the police van.
Discussion
The DEA officers, Juan Infante and Michael Molloy, move to
substitute the United States as the defendant for them. They
also moved to dismiss the claims against the United States.3 The
court granted Lessard extensions of time to respond to the
motions, but he did not do so.
When an employee of the United States government is sued in
federal court, “[u]pon certification by the Attorney General
that the defendant employee was acting within the scope of his
office or employment at the time of the incident out of which
3 That motion will be addressed when the issue of
substitution is resolved.
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the claim arose, any civil action or proceeding commenced upon
such claim in a United States district court shall be deemed an
action against the United States.” 28 U.S.C. § 2679(d)(1). In
that event, “the United States shall be substituted as the party
defendant.” 28 U.S.C. § 2679(d)(1)-(2). The United States
Attorney for the district where the action is proceeding “is
authorized to make the statutory certification that the covered
person was acting at the time of the incident out of which the
suit arose.” 28 C.F.R. § 15.4(b).
The United States Attorney in this district has certified
that Juan Infante and Michael Molloy were acting within the
scope of their employment with the United States in the incident
alleged by Lessard in his complaint. Doc. no. 1-2. Therefore,
the United States should be substituted for DEA defendants Juan
Infante and Michael Molloy.
Conclusion
For the foregoing reasons, the district court should grant
the defendants’ motion (document no. 3) to substitute the United
States as the defendant in place of defendants Juan Infante and
Michael Molloy.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
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R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
any objections within the specified time waives the right to
appeal the district court's order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 1, 2022
cc: Steven Lessard, pro se.
Counsel of record.
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