United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge
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.
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.
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.
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
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. §
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,
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.
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).
Second Amended Complaint
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.)
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
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.
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
Count II, Plaintiff seeks to assert a claim of excessive
force during the course of executing a search warrant.
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).
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
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).
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)
the Court finds that Plaintiff fails to state a claim for
Leave to Amend
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.
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.
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).