JACKSON v. FEDERAL BUREAU OF INVESTIGATION (2025)

ORDER

Plaintiff Brandon Glen Jackson brought this pro se civil rights action under 42 U.S.C. § 1983, 28 U.S.C. § 1331, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against the following Defendants: (1) County Attorney Rachel Mitchell, (2) Deputy County Attorney Neha Bhatia, (3) the Federal Bureau of Investigation (FBI); (4) the FBI Phoenix Field Office, (5) FBI Director Christopher A. Wray, (6) Special Agent Jason L. Saitta, (7) Special Agent Jennifer Baniszweski, (8) the Department of Alcohol, Tobacco, and Firearms (ATF), and (9) Bryan Korus. (Doc. 75.)

Before the Court are Defendant Bhatia's Motion to Dismiss Fifth Amended Complaint (Doc. 69), Defendants Bhatia and Mitchell's (“County Defendants”) Motion to Dismiss Sixth Amended Complaint (Doc. 77), Defendants FBI Field Office, Saitta, and Baniszweski's (“FBI Defendants”) Motion to Dismiss (Doc. 78), and Plaintiff's combined Motion to Amend and Response to Defendants’ Motions to Dismiss (Doc. 81). The Court will deny Defendant Bhatia's Motion to Dismiss as moot,¹ grant County Defendants’ Motion to Dismiss, grant FBI Defendants’ Motion to Dismiss, and deny Plaintiff's Motion to Amend.

I. Background

On November 1, 2024, Plaintiff filed his Sixth Amended Complaint against the above-named Defendants. (Doc. 75.) Plaintiff alleges that Defendants unlawfully targeted him for his political views and ideology and subjected him to an unlawful search, excessive force, malicious prosecution, and violations of his free speech and due process rights. (See id.) Plaintiff asserts claims under § 1983 and Bivens for alleged violations of his First, Second, Fourth, and Fifth Amendment rights. (Id. at 3–4.) Plaintiff seeks injunctive relief and monetary damages. (Id. at 21–22.)

County Defendants move to dismiss the claims against them on the grounds that Plaintiff fails to state a Monell claim for injunctive relief against them under the First, Second, Fourth, or Fifth Amendments and any claims against County Defendants in their individual capacity are barred by absolute prosecutorial immunity. (Doc. 77.)

The FBI Defendants move to dismiss the claims against them on the grounds that the FBI Phoenix Field Office is not an entity that can be sued, and the claims against Saitta and Baniszweski present a new context under Bivens and are therefore barred. (Doc. 78.)

In conjunction with his Response to Defendants’ Motions to Dismiss, Plaintiff moves for leave to file a Seventh Amended Complaint. (Doc. 81.)

II. Federal Rule of Civil Procedure 12(b)(6)

Dismissal of a complaint, or any claim within it, for failure to state a claim under Rule 12(b)(6) may be based on either a “ ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’ ” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In determining whether a complaint states a claim under this standard, the allegations in the complaint are taken as true and the pleadings are construed in the light most favorable to the nonmovant. Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what ․ the claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Where the plaintiff is pro se, the court must “construe the pleadings liberally and ․ afford the [plaintiff] the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (internal quotation marks and citation omitted).

A motion to dismiss is based on the pleadings, and if a court considers evidence outside the pleadings, it must normally convert the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. See Fed. R. Civ. P. 12(b); United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003). “A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.” Id. at 908.

III. Sixth Amended Complaint

In his Sixth Amended Complaint, Plaintiff sets forth the following facts:

Between October and December 4, 2020, Plaintiff was part of a group protesting at various locations, including FBI Headquarters, the Arizona State Capitol, the County Elections Center in Phoenix, and the FBI Field Office. (Doc. 75 at 8–9.)

On October 17, 2020, the County falsely indicted a group of protesters and charged them with “assisting with a criminal street gang.” (Id. at 13.)

On December 4, 2020, Plaintiff participated in a unity rally at the state capital along with other members of the “Boogaloo” movement. (Id.) The Boogaloo is a group of Anarchist/Libertarian-minded individuals who heavily support the Second Amendment and believe in self-governance. (Id. at 14.) Prior to the rally, the FBI spied on Plaintiff at his residence and then followed him to the state capitol. (Id. at 9.) At the rally, the FBI worked with multiple police departments to try to arrest Plaintiff, “flash banged” Plaintiff, and shot him in the groin with a rubber grenade launcher. (Id. at 9.) Plaintiff's vehicle and property in the vehicle were damaged and seized without a warrant. (Id.) One item seized was a short-barreled rifle found in Plaintiff's vehicle. (Id. at 15.) Because there was no registration for this gun, it was deemed a violation of the National Firearm Act of 1934. (Id. at 15–16.) Plaintiff claims that Arizona allows short-barreled rifles and state citizens do not need to register their firearms. (Id.)

In December 2020, Bhatia falsely indicted Plaintiff and two other individuals on a charge of “weapons manufacturing.” (Id. at 13.) Pursuant to this indictment, on December 12, 2020, the FBI led a raid on Plaintiff's residence. (Id. at 9.) During this raid, a Phoenix swat team damaged Plaintiff's residence. (Id.) The FBI seized guns, personal computers, and cell phones, which were listed in the warrant; however, work computers, antique guns, and cryptocurrency were also seized even though those items were not listed in the warrant for seizure. (Id.)

In December 2020, the FBI, in partnership with the Department of Homeland Security, announced that on January 17, 2021, there would be potential violence from far-right militant groups at state capitols across the nation. (Id. at 9.) These events were supposed to be unity rallies and remain peaceful; however, the FBI used Plaintiff's attendance as evidence against him in state court. (Id.)

In 2021, FBI Director Wray began to target U.S. citizens for their politics, ideologies, and participation in protests under the guise of “domestic terrorism,” and many of the cases deemed “domestic terrorism” related to firearm-related crimes. (Id. at 10.)

On March 24, 2022, Plaintiff was arrested in Hagerstown, Maryland for having a handgun on him during “The People's Convoy.” (Id. at 10.) While Plaintiff was in Maryland state custody, the ATF filed charges against him under 18 U.S.C. § 922(n) for traveling across state lines with a firearm while on an indictment. (Id.) The subject indictment had been filed by Bhatia, but it was filed under seal, and neither Plaintiff nor his attorneys received the indictment. The Arizona state judge had not barred Plaintiff from firearms possession; however, FBI agent Saitta contacted Maryland ATF to arrest Plaintiff for violation of his pre-trial release conditions in Arizona. (Id.)

On May 24, 2022, the charges against Plaintiff in Arizona state court were dismissed with prejudice.² The State, represented by Bhatia, moved to reconsider the dismissal with prejudice.³ The Motion to Reconsider was granted, and the charges against Plaintiff were dismissed without prejudice.⁴

On July 27, 2022, Plaintiff entered a plea agreement for the misdemeanor handgun charge against him in Maryland. (Id. at 10.)

On August 30, 2022, Bhatia refiled charges against Plaintiff for hindering prosecution and resisting arrest. (Id.)

In October 2023, Plaintiff pleaded guilty to the charge under § 922(n) in Maryland federal court. (Doc. 75 at 11.)

In May 2024, Plaintiff pleaded guilty to the charge of “Resist Arrest – Passive Resistance,” a class 1 misdemeanor. (Id. at 11.)⁵ There were no other crimes or charges attached to this charge, and it was considered non-violent. (Id.) Plaintiff was sentenced to six months of unsupervised probation and assessed fines.⁶

Plaintiff alleged that due to Defendants’ actions in pursuing Plaintiff in accordance with the FBI agenda to target certain citizens, he lost his job, house, cryptocurrency, and career, and his name was slandered on the internet, which has led to censorship. (Id. at 10.)

Plaintiff alleges that there have been additional cases and raids, and that defendants in these other cases may join as plaintiffs in this case. (Id. at 16.) These other cases and raids include the March 2020 killing of Boogaloo member Duncan Lemp by a Montgomery County SWAT team; the arrest of 13 individuals who held a “Boogaloo ideology” and allegedly attempted to kidnap the Michigan governor; the arrest of Mr. Temple for protesting at the FBI Phoenix Field Office; the FBI raid on Michael Nueman in Arkansas for allegedly being a felon in possession of a gun; the arrest of Ohio resident Aron McKillips for unlawful possession of a machine gun and his role in a private group chat of Boogaloo members that the FBI infiltrated; the case against Timothy Teagan in Michigan, who was arrested for cannabis use while owning a firearm; and “many other cases in different states” that relate to the feud between the FBI/ATF and the Boogaloo. (Id. at 16–19.)

IV. County Defendants’ Motion to Dismiss

In his Sixth Amended Complaint, Plaintiff asserts that he is suing Defendants Bhatia and Mitchell in their official capacity. (Doc. 75 at 2, 7.)⁷ Plaintiff states that the only relief he seeks from County Defendants “is to remove the policy regarding using the Joint Terrorism Task Force for investigations.” (Id. at 21.)

A. Standard for Official Capacity Liability

A governmental official may not be held responsible for the acts of his or her subordinates under a respondeat superior theory of liability. See Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). Therefore, to state a claim against an official in his or her official capacity, a plaintiff must go beyond the respondeat superior theory of liability and demonstrate that the alleged constitutional deprivation was the product of a policy or custom of the local governmental unit because municipal liability must rest on the actions of the municipality, and not the actions of the employees of the municipality. See Brown, 520 U.S. at 403, 117 S.Ct. 1382; Monell, 436 U.S. at 690-91, 98 S.Ct. 2018; Fogel, 531 F.3d at 834.

B. Discussion

Plaintiff alleges that Bhatia and Mitchell engaged in wrongful prosecution and suppressed exonerating evidence in order to falsely charge Plaintiff and pursue a personal vendetta. (Doc. 75 at 8, 10.) He alleges that Bhatia violated his Fifth Amendment rights when she refiled charges against Plaintiff in August 2022 but failed to give Plaintiff any notice of the charges against him. (Id. at 10.) Plaintiff also alleges that the County Attorneys’ Office was directly involved with the investigation into Plaintiff's cases, thereby precluding absolute immunity. (Id. at 12.)

In their Motion to Dismiss, County Defendants argue that Plaintiff fails to state a Monell policy claim for prospective injunctive relief under the First, Second, Fourth, or Fifth Amendments. (Doc. 77 at 4–10.)

1. First Amendment Claim

To state a claim for a First Amendment violation, a plaintiff must plead facts showing that the defendant's conduct “deterred or chilled [the plaintiff's] political speech and such deterrence was a substantial or motivating factor in [the defendant's] conduct.” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999) (quoting Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994)). The question is whether the official's acts would “would chill or silence a person of ordinary firmness from future First Amendment activities.” Id. (citations and quotation marks omitted). To support a First Amendment claim against an official in his or her official capacity, Plaintiff must allege that his constitutional injury was inflicted pursuant to a policy, practice, or custom. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016) (en banc) (quoting City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Isolated incidents of abuse are not enough to state a claim for an unconstitutional policy. Davis v. City of Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 1989) (“[a] plaintiff cannot prove the existence of a municipal policy or custom based solely on the occurrence of a single incident of unconstitutional action by a non-policymaking employee”). To show a policy, a plaintiff may point to a written policy or unwritten practices that are “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); see Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021).

Plaintiff alleges that his First Amendment rights were violated when County Defendants prosecuted him for his political views and activities and when the County Defendants, through their policy to assist the FBI's Joint Terrorism Task Force, targeted Plaintiff and other members of the Boogaloo movement. (Doc. 75 at 8–11.) Plaintiff cites to the Maricopa County Attorney's Office website, which states that its Investigation Division has detectives assigned to the FBI's Joint Terrorism Task Force. (Id. at 12.) Plaintiff therefore alleges that County Defendants were connected to the FBI's actions in investigating Plaintiff. (Id. at 12.) In his Response, Plaintiff clarifies that his constitutional injury arose from the County's policy with the FBI's Joint Terrorism Task Force and that this policy gives rise to liability because the Task Force targets individuals based on political ideology in violation of the First Amendment. (Doc. 81 at 6.)

As County Defendants argue, Plaintiff does not identify a County policy to target and charge protesters for their political views or activities. (Doc. 77 at 5.) Plaintiff alleges that County Defendants falsely indicted protesters in October 2020 and then falsely indicted him in December 2020. Defendants are correct that these two occurrences are insufficient to show that County Defendants were acting pursuant to a policy or custom. (See id. at 5–6.) The Ninth Circuit and district courts within this Circuit have repeatedly declined to infer a custom of constitutional violations based on two unconstitutional incidents alone. See, e.g., Meehan v. Cty. of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (“[p]roof of [two prior] unconstitutional assaults by [law enforcement] agents ․ standing alone, does not support a finding of liability against the County”); Oyenik v. Corizon Health Inc., 696 F. App'x 792, 794 (9th Cir. 2017) (“one or two incidents are insufficient to establish a custom or policy”); Bagley v. City of Sunnyvale, No. 16-cv-02250-JSC, 2017 WL 5068567, at *5 (N.D. Cal. Nov. 3, 2017) (“[p]laintiff cites no cases suggesting that vague reports of two incidents are sufficient to deny a motion to dismiss a Monell claim. Where courts have allowed Monell claims to proceed at the motion to dismiss stage, plaintiffs have pled multiple incidents of alleged violations”); Mendy v. City of Fremont, No. C-13-4180 MMC, 2014 WL 1760226, at *3 (N.D. Cal. Apr. 2, 2014) (“allegations that several officers on a few occasions failed to conform their behavior to the adequate training they received is not sufficient to plead a municipal policy, practice or custom”); Wilkins v. City of Tempe, No. CV 09-00752-PHX-MHM, 2010 WL 94116, at *4 (D. Ariz. Jan. 6, 2010) (“[e]ven assuming the truth of these allegations, it is unreasonable to infer a policy or custom ․ based on the filing of two lawsuits”).

Among the additional cases and raids that Plaintiff cites in his Sixth Amended Complaint, only one occurred within Arizona. Plaintiff alleges that the FBI led arrests against Mr. Wesley Temple on September 1 and December 4, 2020. (Doc. 75 at 17.) According to Plaintiff, the FBI arrested Temple for “possession of a firearm not registered in the National Firearms Registration and Transfer Act” and “possession of prohibited weapon,” and that, after Temple “served his time from the initial charges,” the FBI arrested him and charged him immediately for an unidentified crime. (Id.) There are no allegations that County Defendants were involved in the arrests of Temple or that Temple was charged with a state law crime. (See id.) Thus, the arrests of Temple do not support an unlawful County policy or custom to target certain individuals due to their ideology.

With respect to Plaintiff's claim that County Defendants are liable based on their policy to assist with FBI Joint Terrorism Task Force investigations, Plaintiff's allegations fail to state an official capacity claim. Plaintiff does not allege that the County or County Attorney supervised or had authority over employees while they were working for the Joint Terrorism Task Force, that the County or County Attorney had a role in what the Task Force would do, or that the County or County Attorney created or dictated policy for the Task Force. As mentioned, to state a claim against Mitchell and Bhatia in their official capacity, Plaintiff must show that the County's policy was the “moving force” behind the constitutional violation. Ayala v. Cnty. of Imperial, No. 15cv397-LAB (NLS), 2017 WL 469016, at *7 (S.D. Cal. Feb. 3, 2017). “If some other agency's policy, or the Task Force's own policy were the driving force, and if the County did not create that policy, the County would not be liable.” Id. (addressing the plaintiff's allegations against Imperial County and the Imperial County Narcotics Task Force, which operated under the U.S. Drug Enforcement Agency); see City of Canton, 489 U.S. at 386, 109 S.Ct. 1197 (requiring a “direct causal link between [the] municipal policy or custom and the alleged constitutional deprivation”); Dougherty v. City of Covina, 654 F.3d 892, 900–01 (9th Cir. 2011) (affirming dismissal of Monell claim when the plaintiff failed to allege “any facts demonstrating that his constitutional deprivation was the result of a custom or practice of the City of Covina or that the custom or practice was the ‘moving force’ behind his constitutional deprivation.”). Plaintiff's allegations do not allege a County policy or custom, nor do they connect a County policy or custom to the alleged First Amendment violation.

Consequently, Plaintiff fails to allege a policy or custom that caused his alleged First Amendment violation, and his Monell claim against County Defendants based on a First Amendment violation will be dismissed.

2. Second Amendment Claim

The Second Amendment protects the individual right to keep and bear arms for the purpose of self-defense. McDonald v. City of Chicago, 561 U.S. 742, 749–50, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The individual right under the Second Amendment is incorporated against states and municipalities under the Fourteenth Amendment. Nordyke v. King, 681 F.3d 1041, 1043–44 (9th Cir. 2012) (citing Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010)). Importantly, this right is limited: for example, the government may forbid certain individuals from possessing firearms, Heller, 554 U.S. at 626, 128 S.Ct. 2783, and may seize firearms for certain purposes. Sutterfield v. City of Milwaukee, 870 F. Supp. 2d 633, 642 (E.D. Wis. 2012) (“[n]either Heller nor McDonald prohibit the government from seizing firearms for certain purposes”) (internal citations omitted).

Plaintiff alleged that, on December 12, 2020, the FBI led a raid on his residence and seized guns pursuant to a warrant, but also seized antique guns that were not included in the warrant. (Doc. 75 at 9.) Plaintiff also alleged that, on March 24, 2022, he was arrested in Maryland for having a handgun on him. (Id. at 10.) According to Plaintiff's facts, he was charged under Maryland state law for a misdemeanor gun possession, to which he pleaded guilty, and he was charged under 18 U.S.C. § 922(n) for traveling across state lines with a firearm while on an indictment, to which he also pleaded guilty. (Id. at 10–11.) Plaintiff alleges that this second, federal charge, stripped him of his Second Amendment rights because the pending indictment had been under seal. (Id. at 10.)

Plaintiff acknowledges that there was a valid warrant for the seizure of guns during the December 12, 2020 FBI raid on his home. Although there was not a warrant to seize antique guns, “[t]he mere occurrence of a firearm seizure ․ is not enough to establish a Second Amendment violation.” Partin v. Gevatoski, No. 6:19-CV-1948-AA, 2020 WL 4587386, at *4 (D. Or. Aug. 10, 2020) (“[p]olice seize and confiscate firearms routinely, and this Court will not presume that each and every one of those seizures is an automatic Second Amendment violation without specific facts indicating such”). More importantly, Plaintiff fails to allege any facts to suggest that the gun seizures on December 12, 2020 were pursuant to a policy or custom of the County or County Attorney.

As to the arrest in Maryland, Plaintiff does not allege that he was charged with this felony pursuant to a policy of custom of the County or County Attorney. As County Defendants note, Plaintiff was charged with a felony—traveling across state lines with a firearm while on an indictment. (Doc. 77 at 6–7.) Plaintiff ultimately pleaded guilty to this charge, which precludes any finding that the charge violated Plaintiff's Second Amendment rights.

In sum, Plaintiff fails to allege facts to support that a County policy or custom led to a Second Amendment violation. Plaintiff's Monell claim against County Defendants based on a Second Amendment violation will therefore be dismissed.

3. Fourth Amendment Claims

The Fourth Amendment “guarantees citizens the right ‘to be secure in their persons ․ against unreasonable ․ seizures’ of the person.” Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (alterations in original). Such claims are “analyzed under the Fourth Amendment's ‘objective reasonableness standard.’ ” Id. at 388, 109 S.Ct. 1865. The determination of whether an officer's use of force was “reasonable” under the Fourth Amendment “requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake.” Id. at 396, 109 S.Ct. 1865 (internal quotations omitted); see Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001) (“the force which is applied must be balanced against the need for that force”). This analysis requires “careful attention to the facts and circumstances in each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. In determining whether the force used was “reasonable” under the Fourth Amendment, the court looks at the facts and circumstances confronting the officers, “without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865.

Plaintiff alleged that, on December 4, 2020, he was subjected to the use of force when “a standoff [en]sued where [Plaintiff] was flash banged and shot with a rubber grenade launcher round at [his] groin.” (Doc. 75 at 9.) Plaintiff does not allege who flashed banged him or shot him with a grenade launcher. (See id.) He does not allege that any County employee used force against him, or that the County had a policy or practice encouraging the use of force against civilians or protesters. Nor does Plaintiff allege that any other law enforcement agencies involved in the December 4, 2020 incident used force against Plaintiff pursuant to a County policy. Without more, Plaintiff fails to state a claim for use of excessive force against County Defendants.

Plaintiff alleges a Fourth Amendment claim stemming from the search of his home and confiscation of his property on December 12, 2020. (Id. at 9.) A seizure of property occurs when there is some meaningful interference with an individual's possessory interest in that property. Lavan v. City of L.A., 693 F.3d 1022, 1027 (9th Cir. 2012) (citing United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). Generally, whether a seizure is unreasonable under the Fourth Amendment depends upon the facts and circumstances of each case. Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005) (citing Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967)).

Plaintiff alleges that during the December 12, 2020 search of his home, certain items within the scope of the warrant were seized; however, work computers, antique guns, and cryptocurrency not listed in the search warrant were seized. (Doc. 75 at 9.) He further alleges that his vehicle and property in the vehicle was seized without a warrant. (Id.) The seizure of items that are obviously not within the scope of a warrant may give rise to a Fourth Amendment violation. See Brindley v. Best, 192 F.3d 525, 533 (6th Cir. 1999) (denying qualified immunity for defendant officers who seized cash, an old report card, family photo albums, and other items even though the warrant only authorized a search for certain records related to a pawn and jewelry business; “[n]o reasonable officer in the defendants’ position could have believed that certain seized items were within the scope of the warrant or evidence of a crime”). But Plaintiff does not allege that the items or his vehicle were seized by a County employee or that they were seized pursuant to a County policy or practice. Instead, in his Response, Plaintiff asserts that “the FBI took objects that were not included in the warrant, which included [Plaintiff's] work laptop and crypto currency.” (Doc. 81 at 8 (emphasis added).) Absent any specific allegations or facts regarding County employees acting pursuant to a County policy or custom, Plaintiff fails to state a Monell policy claim against County Defendants for violation of his Fourth Amendment rights.

4. Fifth Amendment Claim

Plaintiff alleges that, in August 2022, when Defendant Bhatia refiled charges against Plaintiff for hindering prosecution and resisting arrest, it constituted a violation of the Fifth Amendment's self-incrimination clause because Plaintiff had already overcome the charges, and they were dropped. (Doc. 75 at 11.)

County Defendants argue that the right against self-incrimination is a right that can only be violated at trial, “[p]retrial action doesn't count.” (Doc. 77 at 9.) County Defendants argue that Plaintiff fails to allege a violation of his Fifth Amendment right against self-incrimination because Plaintiff did not go to trial. (Id. at 8–9.)

In relevant part, the Fifth Amendment requires that “[n]o person ․ shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. The Supreme Court has not conclusively defined what constitutes a “criminal case” under the Fifth Amendment. Vogt v. City of Hays, Kansas, 844 F.3d 1235, 1239 (10th Cir. 2017). In 1990, the Supreme Court decided United States v. Verdugo-Urquidez, and in dicta, noted that the Fifth Amendment right against self-incrimination “is a fundamental trial right of criminal defendants.” 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990). County Defendants rely on this dicta to support their argument that the right against self-incrimination can only be violated at trial. (Doc. 77 at 9, citing Verdugo-Urquidez, 494 U.S. at 264, 110 S.Ct. 1056.)

Following Verdugo-Urquidez, the Supreme Court held that the right against self-incrimination extends to sentencing hearings. Mitchell v. United States, 526 U.S. 314, 320–21, 327, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999). In 2000, the Supreme Court held that the right against self-incrimination applies in the grand jury context, even if the evidence is not used at trial. United Staes v. Hubbell, 530 U.S. 27, 41, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). Then, in 2003, the Supreme Court indicated that the right against self-incrimination was not limited to use at trial. Chavez v. Martinez, 538 U.S. 760, 767, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (“[w]e need not decide today the precise moment when a ‘criminal case’ commences”), 761, 123 S.Ct. 1994 (opining that a “criminal case” does not encompass the entire criminal investigatory process; however, “[i]n our view, a ‘criminal case’ at the very least requires the initiation of legal proceedings”) (Thomas J, plurality opinion). Because Chavez declined to decide when a “criminal case” commences, a circuit split developed as to whether the right against self-incrimination is only a trial right. See Vogt, 844 F.3d at 1240 (discussing circuit split).

The Ninth Circuit concluded that “use of the coerced statements at trial is not necessary” to assert a claim under the Fifth Amendment for violation of the right against self-incrimination. See Stoot v. City of Everett, 582 F.3d 910, 925 (9th Cir. 2009) (emphasis in original). In Stoot, the Ninth Circuit held that a Fifth Amendment violation occurs when “[a] coerced statement ․ has been relied upon to file formal charges against the declarant, to determine judicially that the prosecution may proceed, and to determine pretrial custody status.” Id. at 925–26.

The year after Stoot, the Ninth Circuit decided Crowe v. County of San Diego, which held that all three of the pre-trial proceedings in which the criminal defendants’ statements were used—the “Dennis H. hearing” (to determine pretrial determination), the grand jury proceedings, and the “707 hearing” (to determine whether to try juveniles as adults)—gave rise to a Fifth Amendment cause of action. 608 F.3d 406, 425, 429 (9th Cir. 2010).

Thus, in the Ninth Circuit, pre-trial proceedings are part of a criminal case within the meaning of the Fifth Amendment. See id. at 429; Stoot, 582 F.3d at 925. It follows that, if Defendant Bhatia relied upon a coerced statement when refiling formal charges against Plaintiff, it could give rise to a Fifth Amendment claim. But Plaintiff alleges only that Defendant Bhatia refiled charges against him after they were previously dismissed without prejudice. (Doc. 75 at 11.) This does not constitute a Fifth Amendment violation or any other type of violation. Plaintiff does not allege that he made a coerced statement, that Bhatia relied on that statement to refile formal charges against him, or that the County has a policy to coerce statements from criminal defendants and then rely on them to file formal charges.

Accordingly, Plaintiff fails to state a Monell claim against County Defendants for violation of his Fifth Amendment right against self-incrimination.

Based on the above, County Defendants’ Motion to Dismiss will be granted.

V. FBI Defendants’ Motion to Dismiss

A. FBI and FBI Phoenix Field Office

FBI Defendants assert that Plaintiff does not appear to name the FBI as a defendant in this action because the FBI is not listed as a defendant in Section B of the Sixth Amended Complaint that identifies all defendants. (Doc. 78 at 2, citing Doc. 75 at 2.) But Plaintiff named the FBI as a defendant in the caption of his amended pleading. (Doc. 75 at 1.) Regardless, the Supreme Court has held that Bivens claims cannot be maintained against federal agencies. FDIC v. Meyer, 510 U.S. 471, 114 S. Ct. 996, 1000, 127 L.Ed.2d 308 (1994); Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (“[t]he Supreme Court has refused to extend Bivens remedies from individuals to agencies”). Consequently, to the extent Plaintiff seeks to bring Bivens claims against the FBI, his claims fail. See Murphy v. Gordwin, 262 F. App'x 776, 776–77 (9th Cir. 2007) (“[t]he district court also properly dismissed [the self-represented plaintiff's] claims against the FBI because Bivens does not provide a cause of action against a federal agency”) (citing FDIC, 510 U.S. at 484–85, 114 S.Ct. 996 and Balser v. Dep't of Just., 327 F.3d 903, 909 (9th Cir. 2003)).

FBI Defendants argue that Plaintiff's claims against the FBI Field Office are also barred because neither a Bivens claim nor a Bivens-like cause of action is available against an FBI Field Office. (Doc. 78 at 4–5.) FBI Defendants are correct; a claim against an FBI Field Office is a claim against a federal agency, which is prohibited under Bivens. See Twillie v. Ohio, 351 F. App'x 596, 598 (3d Cir. 2009) (upholding dismissal of the plaintiff's Bivens claims against FBI field offices because they constitute claims against a federal agency, which cannot be raised under Bivens).

Plaintiff's claims against the FBI and FBI Field Office must therefore be dismissed.

B. FBI Agents Baniszewski and Saitta

1. Official Capacity Claims

In his Sixth Amended Complaint, Plaintiff asserted that Defendants Baniszewski and Saitta were sued in their official capacity only. (Doc. 75 at 3.) Bivens claims against Baniszewski and Saitta in their official capacity are barred by the doctrine of sovereign immunity because an official capacity claim is the same as a claim against the government itself. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (the United States cannot be sued without its express consent). Thus, “[t]here is no such animal as a Bivens suit against a public official tortfeasor in his or her official capacity.” Solida v. McKelvey, 820 F.3d 1090, 1094–95 (9th Cir. 2016) (quoting Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001)). To the extent that Plaintiff brings official capacity claims against Baniszewski and Saitta, those claims will be dismissed.

2. Individual Capacity Claims

In his request for relief, Plaintiff requested damages against the FBI Defendants, and damages are available in Bivens suits against individuals in their individual capacity. See Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (“[t]he only remedy available in a Bivens action is an award for monetary damages from defendants in their individual capacities”). Also, in response to FBI Defendants’ Motion to Dismiss, Plaintiff argued that, under the Egbert-Abbasi test, which applies only to Bivens claims brought against individuals in their individual capacity, the Bivens claims against Defendants Baniszewski and Saitta should not be dismissed. (Doc. 81 at 3–6.) Accordingly, the Court will construe Plaintiff's allegations in the Sixth Amended Complaint as asserting Bivens claims against Defendants Baniszewski and Saitta in their individual capacities. See Hebbe, 627 F.3d at 342 (courts must “construe pro se filings liberally when evaluating them under Iqbal” on a motion to dismiss”) (internal quotation omitted).

A Bivens claim is an implied cause of action arising directly under the Constitution for damages against federal officers alleged to have violated a plaintiff's constitutional rights. Bivens, 403 U.S. at 389, 91 S.Ct. 1999. In Bivens, the Supreme Court recognized an implied cause of action for damages for persons injured by federal officers who violated the Fourth Amendment prohibition against unreasonable searches and seizures. See id. at 396–97, 91 S.Ct. 1999. Subsequently, the Supreme Court has only recognized an implied Bivens cause of action in limited contexts. These include a claim under the Fifth Amendment Due Process clause for gender discrimination, Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and a claim under the Eighth Amendment Cruel and Unusual Punishment clause for deliberate indifference to serious medical needs, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). “These three cases—Bivens, Davis, and Carlson—represent the only instances in which the [Supreme] Court has approved of an implied damages remedy under the Constitution itself.” Ziglar v. Abbasi, 582 U.S. 120, 131, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017); see Egbert v. Boule, 596 U.S. 482, 484, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022).

Although the Supreme Court has not “dispense[d] with Bivens altogether,” it has “emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial activity.’ ” Egbert, 596 U.S. at 491, 142 S.Ct. 1793 (quoting Ziglar, 582 U.S. at 135, 137 S.Ct. 1843). In Ziglar, the Supreme Court set forth a two-part test to determine whether a Bivens claim may proceed: a court first must consider whether the claim at issue extends Bivens in a new context from previously established Bivens cases, and, if so, a court must then apply a “special factors analysis” to determine whether there are “special factors counselling hesitation” in expanding Bivens. Ziglar, 582 U.S. at 136, 137 S.Ct. 1843.

These two steps “often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 596 U.S. at 492, 142 S.Ct. 1793. A court “must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies ‘should be augmented by the creation of a new judicial remedy.’ ” Id. at 493, 142 S.Ct. 1793 (quoting Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)). “The question is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts? The answer most often will be Congress.” Ziglar, 582 U.S. at 135, 137 S.Ct. 1843 (quoting Bush, 462 U.S. at 380, 103 S.Ct. 2404).

“When an issue ‘involves a host of considerations that must be weighed and appraised,’ it should be committed to ‘those who write the laws’ rather than ‘those who interpret them.’ ” Id. at 135-36, 137 S.Ct. 1843 (quoting Bush, 462 U.S. at 380, 103 S.Ct. 2404). And a court “may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, ‘an alternative remedial structure.’ ” Egbert, 596 U.S. at 493, 142 S.Ct. 1793 (quoting Ziglar, 582 U.S. at 137, 137 S.Ct. 1843). “If there are alternative remedial structures in place, ‘that alone,’ like any special factor, is reason enough to ‘limit the power of the Judiciary to infer a new Bivens cause of action.’ ” Id. (quoting Ziglar, 582 U.S. at 137, 137 S.Ct. 1843). Even if the alternative remedies are not as effective as a Bivens remedy would be, the Court cannot “second-guess” Congress by “superimposing a Bivens remedy.” Id. at 498, 142 S.Ct. 1793.

a. First Amendment Claims

Plaintiff alleges that Defendants Baniszweski and Saitta led an investigation against Plaintiff and followed instructions to pursue individuals due to their political views. (Doc. 75 at 8.) Plaintiff alleges that the FBI targets individuals who support the Second Amendment and label them as “domestic terrorists” to pursue a political agenda. (Id. at 13–14.) Plaintiff further alleges that the FBI monitored Plaintiff's social media posts and logged them as evidence against him. (Id. at 14.) Finally, Plaintiff alleges that, in furtherance of political persecution against him, the FBI reached out to social media companies and websites that use Amazon Web Services to block Plaintiff's name and ban his business on search engines. (Id. at 15.)

Plaintiff's First Amendment claims arise in a new context because they are “meaningful[ly] different from the three cases in which the [Supreme] Court has implied a damages action.” Egbert, 596 U.S. at 492, 142 S.Ct. 1793; see Reichle v. Howards, 566 U.S. 658, 663 n.4, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (“[w]e have never held that Bivens extends to First Amendment claims”); Vanderklok v. United States, 868 F.3d 189, 198 (3d Cir. 2017) (“[t]he Supreme Court has never implied a Bivens action under any clause of the First Amendment”). Therefore, the Court must determine whether there are “special factors counselling hesitation” in expanding Bivens. Ziglar, 582 U.S. at 136, 137 S.Ct. 1843. “The existence of even a single reason to pause before applying Bivens forecloses relief.” Xi v. Haugen, 68 F.4th 824, 836 (3d Cir. 2023) (internal quotation omitted).

Initially, no case has extended Bivens to First Amendment claims; thus, extending Bivens to Plaintiff's claims for alleged investigations and prosecution based on political views “would create a broad new source of liability” for federal officials. See Reichle, 566 U.S. at 663, 132 S.Ct. 2088; Chambers v. C. Herrera, 78 F.4th 1100, 1106 (9th Cir. 2023) (finding that extending Bivens to Eighth Amendment failure-to-protect claims “would create a broad new source of liability for prison officials”). “This alone is enough to place it beyond the purview of the courts to create a remedy, because courts may not ‘independently assess the costs and benefits of implying a cause of action.’ ” Chambers, 78 F.4th at 1106 (quoting Egbert, 596 U.S. at 496, 142 S.Ct. 1793). Rather, Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.’ ” Egbert, 596 U.S. at 496, 142 S.Ct. 1793 (quoting Ziglar, 582 U. S. at 136, 137 S.Ct. 1843).

FBI Defendants rely on the Third Circuit's decision in Xi v. Haugen to argue that, where national security interests are implicated, the judiciary is not well equipped to fashion a damages remedy against FBI agents, compared to Congress. (Doc. 78 at 8–9, citing 68 F.4th 824.) In Xi, the Third Circuit explained that courts must focus on the context in which a claim is brought, as opposed to the particular claim itself. 68 F.4th at 836. With respect to claims against FBI agents, the court recognized that they “are on the front lines of responding to national security threats where the prospect of damages liability could cause them to second-guess difficult but necessary decisions with significant consequences for public safety and foreign policy.” Id. Further, resolution of such claims could result in judicial review of the executive administration's policies and priorities. Id.

FBI Defendants argue that because the FBI was responding to 2020 post-election results and were “on the front lines of responding to potential national security threats,” Plaintiff's claims implicate national security interests. (Doc. 78 at 9.) Plaintiff argues that he was not a national security threat, nor was he targeted for “foreign policy” like the plaintiff in Xi. (Doc. 81 at 5.) Plaintiff maintains that the fact FBI agents targeted him for his political ideology and for protesting proves his claim that they violated his First Amendment rights. (Id.)

Plaintiff's arguments go to the substance of his particular claims, not the context in which the FBI was acting at the time, which was in response to heightened threats and unrest following the 2020 election. The fact that these threats were domestic, as opposed to foreign, does not eliminate the threat to national security interests. Regardless, as the Xi opinion explained, the question is not whether national security required the FBI's conduct in this case (i.e., whether Defendants Baniszweski and Saitta's actions were justified by national security); it is whether the courts “should alter the framework established by the political branches for addressing that conduct.” 68 F.4th at 837.

Based on the above, there are special factors that counsel against a Bivens remedy for Plaintiff's First Amendment claims against FBI agents Baniszweski and Saitta, and the claims will be dismissed.

b. Fourth Amendment Claims

Plaintiff alleges that when the FBI attempted to arrest Plaintiff at a December 4, 2020 protest, he was “flash banged” and shot in the groin with a rubber grenade launcher. (Doc. 75 at 9.) Plaintiff alleges that Defendants Baniszweski and Saitta then conducted an unlawful search and aided in the seizure of property at Plaintiff's residence. (Id. at 8, 10.)

As stated, in Bivens, the Supreme Court recognized an implied cause of action for damages against federal officers who violated the Fourth Amendment prohibition against unreasonable searches and seizures. 403 U.S. at 396–97, 91 S.Ct. 1999. But “[a]claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.” Hernandez v. Mesa, 589 U.S. 93, 103, 140 S.Ct. 735, 206 L.Ed.2d 29 (2020).

FBI Defendants argue that Plaintiff's claims arise in a different context than Bivens because, in Bivens, Federal Bureau of Narcotics agents entered the plaintiff's apartment, arrested him, handcuffed him, threatened to arrest his family, searched the apartment, interrogated him, and subjected him to a visual strip search, all without warrant or probable cause. (Doc. 78 at 7.) FBI Defendants note that, in Plaintiff's case, the defendants are FBI agents, not Federal Bureau of Narcotics agents. (Id.) The Ninth Circuit has held that a Fourth Amendment claim brought against a Bureau of Land Management officer presented a new Bivens context because, in part, the Bureau of Land Management officer constituted a new category of defendants. Mejia v. Miller, 61 F.4th 663, 668–69 (9th Cir. 2023). Courts have held that a Fourth Amendment claim against an FBI agent constitutes a new context because it is a different defendant than in Bivens. See Xi, 68 F.4th at 829, 834 (finding excessive force claim against FBI agent constituted a new category of defendant); Massaquoi v. FBI, No. 22-55448, 2023 WL 5426738, at *2 (9th Cir. Aug. 23, 2023) (concluding that the plaintiff's “Fourth Amendment claim presents a new Bivens context because ․ the claim involves a new category of defendants, the FBI agents”).

The Federal Bureau of Narcotics agents in Bivens acted without a warrant, as opposed to Plaintiff's case, where the FBI had a warrant for the search of Plaintiff's residence, albeit they seized some property not covered by the warrant. (Doc. 75 at 9.) Because the FBI was executing a search warrant, they were acting under a different legal mandate than the Narcotics agents in Bivens. See Massaquoi, 2023 WL 5426738, at *2 (finding a new Bivens context because the agents had a search warrant); Purbeck v. Coffin, 2024 WL 342092, at *3 (D. Idaho Jan. 29, 2024) (the plaintiff's “claims involve a new category of defendant—FBI agents—as well as a different legal mandate as the agents were executing a search warrant at the time of the detention and search”); Mark P. Oster v. Mark W. Burnett, No. 8:23-cv-02401-DOC (SK), 2024 WL 199520, at * 1 (C.D. Cal. Jan. 18, 2024) (finding existence of warrant created new context).

Lastly, with respect to Plaintiff's Fourth Amendment excessive force claim, again, the claim involves an FBI agent rather than a Federal Bureau of Narcotics agent, and the incident occurred at a public place—the state capitol, instead of a private residence as in Bivens.

Plaintiff's Fourth Amendment claims therefore arise in a new context, which requires the Court to conduct the special factors analysis.

FBI Defendants argue that the conclusion established in Xi—that is, that where national security interests are implicated, Congress is better equipped to fashion a damages remedy against FBI agents—applies to Plaintiff's Fourth Amendment claims. (Doc. 78 at 8–9.) The Court agrees. At both the December 4, 2020 protest and during the December 12, 2020 search of Plaintiff's residence, the FBI was acting in response to domestic threats following the 2020 election, which implicates national security interests.

There is one additional special factor counseling against extending a Bivens remedy in this case. As mentioned, if there exists an alternative remedial structure, that is reason enough to limit inferring a new Bivens cause of action. Egbert, 596 U.S. at 493, 142 S.Ct. 1793. In an unpublished decision, the Ninth Circuit recognized that there are administrative remedies available for conduct involving FBI agents. Massaquoi, 2023 WL 5426738, at *2. Under Department of Justice regulations, an individual may report non-frivolous allegations of criminal wrongdoing or misconduct to the Department's Office of the Inspector General, which may investigate the allegations or refer them to another department for investigation. Id. (citing 5 U.S.C. § 413(b)(2), (d); 28 C.F.R. §§ 0.29c(d), 0.29h).

Accordingly, there are special factors that counsel against a Bivens remedy for Plaintiff's Fourth Amendment claims against FBI agents Baniszweski and Saitta, and the claims will be dismissed. FBI Defendants’ Motion to Dismiss will be granted.

VI. Plaintiff's Motion to Amend

Under Rule 15, a party “may amend its filing once as a matter of course[.]” Fed. R. Civ. P. 15(a)(1). For subsequent amendments, “a party may amend its pleading only with the opposing party's written consent or the court's leave. Id. Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’ ” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” Id.; Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (a district court can deny leave “where the amendment would be futile ․ or where the amended complaint would be subject to dismissal”). Futility alone can be enough to deny a motion for leave to amend. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004).

Plaintiff moves for leave to file a Seventh Amended Complaint, and he lodged the Seventh Amended Complaint. (Docs. 81, 82.) FBI Defendants oppose Plaintiff's Motion to Amend on the grounds that amendment is futile, would cause undue delay as Plaintiff has failed to state a claim despite six amended pleadings in over two years, and amendment would prejudice FBI Defendants due to the necessity to maintain on-going attention to this case by numerous federal officials. (Doc. 86.) Plaintiff did not file a reply in support of his Motion to Amend.

Upon review of Plaintiff's lodged 23-page Seventh Amended Complaint, the Court finds that leave to amend is not warranted. Plaintiff's Seventh Amended Complaint presents no new facts and no new theories. Plaintiff names the exact same Defendants as in the Sixth Amended Complaint and sets forth the exact same factual allegations and claims. (See Docs. 75, 82.) In fact, the Seventh Amended Complaint is verbatim of the Sixth Amended Complaint except for the addition of two sentences. In the “Discovery and Facts” section of the Seventh Amended Complaint, where Plaintiff alleges that from 2019–2022, multiple Executive Orders and Acts were passed that gave the FBI, ATF, and other agencies the power to investigate “domestic terrorism” and extremists, he added the following sentence: “These executive orders and bill[s] Congress passed like H.R. 350 – Domestic Terrorism Prevention Act of 2022 added more power on top of the already problematic H.R. 3162 – “Patriot Act” that was passed in 2001.” (Doc. 82 at 13–14.) In the “Additional Cases” section of the Seventh Amended Complaint, where Plaintiff alleges that the FBI and ATF target the Boogaloo movement, he adds the following sentence: “Over 200 Boogaloo, Proud Boys, and Oathkeepers have been targeted and charged since Dec. 2020.” (Id. at 19.) Neither of these sentences cures the deficiencies in Plaintiff's Sixth Amended Complaint. Indeed, some of the deficiencies cannot be cured by amendment. See Cagan v. Lake, No. 1:19-cv-01629-SAB (PC), 2019 WL 6827568 at *2, 4 (E.D. Cal. Dec. 13, 2019) (finding that, because a Bivens action cannot be maintained against a government agency and the court declined to recognize an implied Bivens cause of action for alleged First Amendment violations by prison officials, the deficiencies in the complaint could not be cured by amendment, and granting leave to amend would be futile). Amendment would be futile because the asserted claims would be subject to dismissal on the exact same grounds raised in County Defendants’ and FBI Defendants’ current Motions to Dismiss. See Saul, 928 F.2d at 843.

Accordingly, Plaintiff's Motion to Amend will be denied.

IT IS ORDERED:

(1) The reference to the Magistrate Judge is withdrawn as to Defendant Bhatia's Motion to Dismiss (Doc. 69), County Defendants’ Motion to Dismiss (Doc. 77), FBI Defendants’ Motion to Dismiss (Doc. 78), and Plaintiff's Motion to Amend (Doc. 81).

(2) Defendant Bhatia's Motion to Dismiss (Doc. 69) is denied as moot.

(3) County Defendants’ Motion to Dismiss (Doc. 77) is granted.

(4) FBI Defendants’ Motion to Dismiss (Doc. 78) is granted.

(5) Plaintiff's Motion to Amend (Doc. 81) is denied.

(6) Bhatia, Mitchell, the FBI, the FBI Phoenix Field Office, Baniszweski, and Saitta are dismissed as Defendants.

(7) The remaining claims are those against the ATF, Korus, and Wray.

FOOTNOTES

1.   Defendant Bhatia's Motion to Dismiss addresses Plaintiff's Fifth Amended Complaint. (Doc. 69.) After Bhatia filed the Motion to Dismiss, the Court granted Plaintiff leave to amend and he filed the Sixth Amended Complaint. (Docs. 75, 76.) Because the Fifth Amended Complaint is no longer the operative complaint, Bhatia's Motion to Dismiss will be denied as moot.

2.   See Maricopa County Superior Court, May 24, 2022 Minute Entry, https://courtminutes.clerkofcourt.maricopa.gov/viewerME.asp?fn=Criminal/052022/m9989859.pdf (last visited April 30, 2025). Judicial notice of court records is routinely accepted. See, e.g., Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635, n.1 (N.D. Cal. 1978). Specifically, courts “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (quoting United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)).

3.   See Maricopa County Superior Court, June 8, 2022 Minute Entry, https://courtminutes.clerkofcourt.maricopa.gov/viewerME.asp?fn=Criminal/062022/m10008473.pdf (last visited April 30, 2025).

4.   See Maricopa County Superior Court, July 18, 2022 Minute Entry, https://courtminutes.clerkofcourt.maricopa.gov/viewerME.asp?fn=Criminal/072022/m10051130.pdf (last visited April 30, 2025).

5.   See Maricopa County Superior Court, May 10, 2024 Minute Entry, https://courtminutes.clerkofcourt.maricopa.gov/viewerME.asp?fn=Criminal/052024/m10873092.pdf (last visited April 30, 2025).

6.   See Maricopa County Superior Court, June 10, 2024 Sentencing Order, https://courtminutes.clerkofcourt.maricopa.gov/viewerDoc.asp?sadID=229184 (last visited April 30, 2025).

7.   The Court previously granted County Defendants’ Motion to Dismiss individual capacity claims asserted against Bhatia and Mitchell in Plaintiff's Third Amended Complaint based on absolute prosecutorial immunity and Eleventh Amendment immunity. (Doc. 33.)

John J. Tuchi, United States District Judge