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Joseph Benedict MELONE, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
ORDER
On December 9, 2021, Plaintiff Joseph Benedict Melone, who is confined in the Arizona State Prison Complex-Yuma, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. On December 15, 2021, the Court denied the deficient Application to Proceed, dismissed the Complaint because it was not filed on a court-approved form, and gave Plaintiff 30 days to (1) pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis and (2) file an amended complaint using the court-approved form included with the Order.
On January 7, 2022, Plaintiff filed a second Application to Proceed In Forma Pauperis and a First Amended Complaint (Doc. 5), which superseded the original Complaint in its entirety. On January 11, 2022, the Court denied the deficient Application to Proceed and gave Plaintiff 30 days to pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis. Plaintiff subsequently filed two more deficient Applications to Proceed, both of which the Court denied.
On March 30, 2022, Plaintiff filed another Application to Proceed In Forma Pauperis (Doc. 15). The Court will grant the March 30, 2022 Application to Proceed and dismiss the First Amended Complaint with leave to amend.
I. Application to Proceed In Forma Pauperis and Filing Fee
The Court will grant Plaintiff's Application to Proceed In Forma Pauperis. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $28.98. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2).
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) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] ․ a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681, 129 S.Ct. 1937.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’ ” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam)).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Plaintiff's First Amended Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.
III. Background
Plaintiff pleaded guilty in Maricopa County Superior Court case #CR2013-428089 to one count of aggravated driving under the influence and was sentenced to probation.1 On December 17, 2019, Plaintiff was charged in this Court with one count of possession of a firearm by a person subject to a court order. United States v. Melone, CR 19-01415-PHX-DGC (D. Ariz. 2019). The Court required Plaintiff to be detained pending trial in that case. Id. (Doc. 14).
Also on December 17, 2019, the State filed a petition to revoke Plaintiff's probation in his state court proceeding.2 On December 16, 2020, Plaintiff pleaded guilty to the charge in CR 19-01415, and the next day, the Court sentenced him to a 24-month term of imprisonment, followed by 2 years on supervised release. Id. (Docs. 67, 68).
On July 7, 2021, the trial court in Plaintiff's state criminal proceeding revoked his probation and sentenced him to 2.5 years in prison.3
IV. First Amended Complaint
In his two-count First Amended Complaint, Plaintiff sues the Federal Bureau of Investigation (FBI), Special Agents Jason Saitta and Jennifer Banszowski, Maricopa County Adult Probation, and Probation Officers Carrie Ward and Arthur Christian. Plaintiff asserts claims relating to a search of his home and his subsequent arrest. He seeks a declaration that 18 U.S.C. § 922(g)(1) and (g)(8) are unconstitutional, as well as monetary relief.
In Count One, Plaintiff alleges that on December 13, 2019, three non-party FBI Agents verbally opened an investigation into Plaintiff. Defendant Saitta “drafted” the investigation. Plaintiff alleges that federal agents contacted Defendant Maricopa County Adult Probation, without probable cause, to “use a date” that Defendant Christian had scheduled for a home visit at Plaintiff's residence “for a mechanism as subterfuge for a valid warrant.” Plaintiff claims federal agents conspired with Defendant Maricopa County Adult Probation to conduct an illegal search of Plaintiff's residence in violation of his Fourth Amendment rights. As his injury, Plaintiff asserts his privacy was unjustly invaded, he was unjustly detained in his home, and he was incarcerated and denied bail.
In Count Two, Plaintiff alleges that Defendants Christian, Ward, and Banszowski illegally entered Plaintiff's residence, conducted an illegal search, and illegally seized a Glock 43 handgun that Plaintiff kept in his home for self-defense purposes, in violation of his Second Amendment rights.
V. Failure to State a Claim
To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).
A. Fourth Amendment
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” (Emphasis added.) Plaintiff alleges that federal agents “use[d] a date” that Defendant Christian had scheduled for a home visit at Plaintiff's residence “for a mechanism as subterfuge for a valid warrant.” It is unclear whether Plaintiff alleges that the search was conducted pursuant to a warrant. But even if the search was warrantless, Plaintiff has not identified the crime for which he was on probation and whether warrantless searches or suspicionless searches were authorized as a condition of his probation. See United States v. Knights, 534 U.S. 112, 122, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (warrantless search, “supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment”); United States v. King, 736 F.3d 805, 810 (9th Cir. 2013) (“a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment”). Thus, Plaintiff has not stated a Fourth Amendment claim with respect to the search of his home or the seizure of the handgun.
B. Second Amendment
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court held that “the Second Amendment protects the right to keep and bear arms for the purpose of self-defense,” and that a “law that banned the possession of handguns in the home” was therefore unconstitutional. McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The Supreme Court noted, however, that “[l]ike most rights, the right secured by the Second Amendment is not unlimited,” and that “nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms.” Heller, 554 U.S. at 626-27, 128 S.Ct. 2783. Thus, the Supreme Court emphasized that the core of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635, 128 S.Ct. 2783.
Section 922(g)(8) imposes one such limitation on citizens’ Second Amendment rights, and various federal appellate courts have concluded that on its face, § 922(g)(8) does not violate the Second Amendment. See, e.g., United States v. Boyd, 999 F.3d 171 (3d Cir. 2021); United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020); United States v. Chapman, 666 F.3d 220 (4th Cir. 2012); United States v. Bena, 664 F.3d 1180 (8th Cir. 2011); United States v. Reese, 627 F.3d 792 (10th Cir. 2010); United States v. Napier, 233 F.3d 394 (6th Cir. 2000); cf. United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013) (concluding in a case involving § 922(g)(9) that defendant's Second Amendment claim—that he has a right to possess a firearm in his home for the purpose of self-defense—was “not within the core right identified in Heller—the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense”) (quoting United States v. Chester, 628 F.3d 673, 682-83 (4th Cir. 2010)).
Here, Plaintiff acknowledged in the plea agreement in his federal criminal case that he was subject to an order of protection and was not permitted to possess firearms during the pendency of the order of protection. A weapon was found in his residence. Thus, Defendants did not violate Plaintiff's Second Amendment rights by seizing a weapon that Plaintiff was prohibited to possess. Thus, Plaintiff has failed to state a Second Amendment claim.
VI. Leave to Amend
Within 30 days, Plaintiff may submit a second amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a second amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the second amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the “Second Amended Complaint.” The second amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint or First Amended Complaint by reference. Plaintiff may include only one claim per count.
A second amended complaint supersedes the original Complaint and First Amended Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint and First Amended Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original Complaint or First Amended Complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a second amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
VII. Warnings
A. Release
If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
C. Possible “Strike”
Because the First Amended Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file a second amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a “strike” under the “3-strikes” provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
D. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 15) is granted.
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $28.98.
(3) The First Amended Complaint (Doc. 5) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a second amended complaint in compliance with this Order.
(4) If Plaintiff fails to file a second amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a “strike” under 28 U.S.C. § 1915(g) and deny any pending unrelated motions as moot.
(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.
FOOTNOTES
1. See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo.asp?caseNumber=CR2013-428089 (last accessed Mar. 30, 2022).
2. Id.
3. Id.
Michael T. Liburdi, United States District Judge
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Docket No: No. CV 21-02097-PHX-MTL (MTM)
Decided: April 04, 2022
Court: United States District Court, D. Arizona.
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