Opinion
No. CV 15-01088-PHX-JJT (BSB)
04-26-2017
Abdul-Khabir Wahid, Plaintiff, v. The Federal Bureau of Investigation, Defendant.
ORDER
Before the Court are Magistrate Judge Bade's Report and Recommendation (R&R) as to Plaintiff's Abdul-Khabir Wahid's First Amended Complaint and Plaintiff's Second Amended Complaint, which has not yet been screened. (Docs. 34-35.) The Magistrate Judge recommended that Plaintiff's First Amended Complaint be dismissed and that Plaintiff be given leave to file a second amended complaint. (Doc. 34.)
The Court herein adopts the R&R, dismisses Plaintiff's First Amended Complaint, and screens Plaintiff's Second Amended Complaint. The Court will dismiss the Second Amended Complaint with leave to amend.
I. R&R
The Magistrate Judge issued the R&R on October 21, 2016, and advised the parties that they had fourteen days to file objections. (Doc. 34 at 6-7, citing 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 6, 72.) On October 25, 2016, just four days after the R&R was issued, Plaintiff filed his Second Amended Complaint against Defendant Todd Kopcha. (Doc. 35.) Thereafter, the Court informed Plaintiff that because the R&R was pending, Defendant had not yet been directed to respond to the Second Amended Complaint. (Doc. 41.) Meanwhile, no objections to the R&R were filed.
Because the parties did not file objections, the Court need not review any of the Magistrate Judge's determinations on dispositive matters. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 112 (9th Cir. 2003); Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection"). Nonetheless, the Court has reviewed the R&R and finds that it is well-taken and that leave to file a second amended complaint is appropriate. The Court will therefore accept the R&R, dismiss the First Amended Complaint, and screen the Second Amended Complaint.
II. Screening
Because the Court granted Plaintiff in forma pauperis status, the Court reviews the Second Amended Complaint pursuant to 28 U.S.C. § 1915, and must dismiss the case if it determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
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 (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 (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." Ashcroft, 556 U.S. at 678.
In its assessment, the court must "construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); see Morrison v. Hall, 261 F.3d 896, 899 n.2 (9th Cir. 2001) (district court must afford pro se litigant the benefit of any doubt in ascertaining what claims are raised). 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).
III. Second Amended Complaint
Plaintiff brings this action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), against Federal Bureau of Investigation (FBI) agent Todd Kopcha. (Doc. 35 at 1.) Plaintiff sets forth two claims for relief. In Count I, he alleges that Defendant made false statements in an affidavit submitted in support of a search warrant application in violation of the Fourth Amendment. (Id. at 3.) Specifically, Plaintiff states that in his affidavit, Defendant said that Plaintiff conspired to harm others, crossed state lines with firearms with intent to commit violent acts, and deceived the FBI by lying to them. (Id.) In Count II, Plaintiff alleges that Defendant's conduct resulted in a threat to Plaintiff's safety in violation of the Fourth Amendment. (Id. at 4.) Plaintiff asserts that a result of Defendants' false statements in the affidavit, Plaintiff was perceived as armed and dangerous and the FBI reacted by drawing and aiming their guns at Plaintiff's head when they detained him and removed him at his home in connection with the search. (Id.)
A. Count I
In Count I, Plaintiff seeks to assert a claim of judicial deception. The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." A government investigator may be liable for violating the Fourth Amendment if he or she submits false and material information in a warrant affidavit. Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002); Butler v. Elle, 281 F.3d 1014, 1024-26 (9th Cir. 2002); see Chism v. Washington, 661 F.3d 380, 393 (9th Cir. 2011) (a plaintiff has "a constitutional right to not be searched . . . as a result of judicial deception").
To state a § 1983 claim for judicial deception in obtaining a warrant, a plaintiff must allege facts showing (1) that the defendant deliberately or recklessly made false statements or omissions in the affidavit, and (2) that the falsifications were material to the finding of probable cause. Galbraith, 307 F.3d at 1126; see Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). The materiality element requires the plaintiff to demonstrate that "the magistrate would not have issued the warrant with false information redacted, or omitted information restored." Lombardi v. City of El Cajon, 117 F.3d 1117, 1126 (9th Cir. 1997). A plaintiff must present more than conclusory allegations or a recital of these elements to state a claim for judicial deception. See Ashcroft, 556 U.S. at 678.
Because "[a]ctions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens[,]" cases discussing § 1983 clams apply to Bivens claims. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).
In Count I, Plaintiff sufficiently alleges the first prong required by Galbraith—that Defendant made three deliberately false statements in the affidavit. But Plaintiff fails to sufficiently allege that the falsifications were "material" to the finding of probable cause. See Galbraith, 307 F.3d at 1126. He does not indicate how these three statements are false or that Defendant knew or should have known that they were false, nor does Plaintiff allege facts to support that the warrant would not have issued but for these false statements. Without more, the Court cannot determine whether Defendant's statements were material to the finding of probable cause for the warrant. Plaintiff therefore fails to state a claim for judicial deception.
B. Count II
In Count II, Plaintiff seeks to assert a claim of excessive force during the course of executing a search warrant.
"Inherent in [the] authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention." Muehler v. Mena, 544 U.S. 93, 98-99 (2005). Whether the manner of detention is reasonable is determined by the particular circumstance in the case. See id. at 99-100 (use of handcuffs reasonable in detaining occupant where warrant authorized a search for weapons and a wanted gang member); Hansen v. Schubert, 459 F. Supp. 2d 973, 989-91 (E.D.Cal. 2006) (it was reasonable for officers executing search warrant to display their weapons and touch occupants in order to move them to the living room). Aiming weapons at a suspect may, in certain circumstances, constitute excessive force. See Robinson v. Solano Cnty., 278 F.3d 1007, 1013-15 (9th Cir.2002) (en banc).
Here, Plaintiff fails to allege the particular circumstances regarding the agents' use of force during execution of the search warrant. He does not allege whether he followed commands when agents arrived at his home and served the warrant, whether he resisted or not, or whether the agents gave warnings before aiming their guns. Without more, Plaintiff fails to establish that the agents' use of force was excessive. Moreover, Plaintiff fails to name as Defendants the "agents" who allegedly used excessive force.
Even assuming that there was a showing of excessive force, Plaintiff acknowledges that the agents executing the search warrant believed, in the circumstances, that their use of force—aiming guns at Plaintiff's head—was necessary in light of Defendant's false representations in the affidavit to support the warrant. Plaintiff claims, however, that such force was in fact unreasonable because he did not pose the threat suggested by Defendant's statements. In only a couple cases have courts recognized an excessive force claim where false statements were a "substantial factor" in causing the use of force. See Wright v. City of St. Francis, KS, 95 F. App'x 915, 929-30 (10th Cir. April 20, 2004) (unpublished); Byrd v. S.F. City and Cnty., C 11-01742 DMR, 2013 WL 450369, at *13 (E.D. Cal. Feb. 5, 2013) (granting summary judgment to the defendant on claim that defendant's "false statements set in motion a series of events" that led to use of excessive force and unlawful detention because the plaintiff presented no evidence that the defendant's statements were false).
Because Plaintiff has failed to state a claim for judicial deception, he also fails to state a claim for excessive force caused by Defendant's allegedly false statements. Also, Plaintiff does not allege that Defendant was a supervisor such that he can be liable for setting in motion a "series of acts by others which [he knew] or reasonably should [have known] would cause others to" violate Plaintiff's constitutional rights. Preschooler II v. Clark Cnty. Sch. Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007) (quotation omitted).
Accordingly, the Court finds that Plaintiff fails to state a claim for excessive force.
IV. Leave to Amend
For the foregoing reasons, Plaintiff's Second Amended Complaint will be dismissed for failure to state a claim upon which relief may be granted. Because the complaint may possibly be amended to state a claim, the Court will dismiss it with leave to amend. See Lopez, 203 F.3d at 1127-29.
Within 30 days, Plaintiff may submit a third amended complaint to cure the deficiencies outlined above. The Court notes that the affidavit in support of the search warrant, which is the basis of Plaintiff's allegations against Defendant, is part of the record in this matter. (See Doc. 26, Attach.) Plaintiff may incorporate the affidavit into his third amended complaint by referencing the relevant parts of the affidavit, identified by paragraph number, that he believes support his claim. Plaintiff must allege how any identified statement was false and material to granting of the search warrant.
The Clerk will again mail Plaintiff a court-approved form that he may use for filing a third amended complaint if he so chooses. Plaintiff must clearly designate on the face of the document that it is the "Third Amended Complaint." Plaintiff may include only one claim per count. A third amended complaint supersedes every prior 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 every prior complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in a prior complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a third amended complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (en banc).
V. Warnings
A. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Local Rule of Civil Procedure 83.3(d). 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.
B. Copies
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
C. 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) The Report and Recommendation of the Magistrate Judge (Doc. 34) is accepted.
(2) Plaintiff's First Amended Complaint (Doc. 28) is dismissed without prejudice.
(3) Plaintiff's Second Amended Complaint (Doc. 35) is dismissed without prejudice.
(4) Within 30 days from the date of this Order, Plaintiff may file a third amended complaint in compliance with this Order.
(5) If Plaintiff fails to file a third amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice.
(6) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.
Although Plaintiff is not a prisoner, Plaintiff may use this form to assist him in presenting his claims to the Court.
Dated this 26th day of April, 2017.
/s/_________
Honorable John J. Tuchi
United States District Judge
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