United States District Court, D. Arizona
ORDER
STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE
Pending
before the Court is Plaintiff's pleading entitled,
“motion to vacate [judgment]” pursuant to Rule 60
of the Federal Rules of Civil Procedure (Doc. 21). In his
motion, Plaintiff requests that the Court vacate the order
and judgment issued in this case (Docs. 18, 19) claiming that
this Court “should explain and expound how exactly rule
8 works and why exactly plaintiff's complaint doesn't
meet with the standard.” Plaintiff states that the
Court dismissed this matter “without providing a notice
or chance to be heard, ” and “didn't comply
with all the other instructions in the mandate ... .”
The
Court will recap the procedural background of this case as
discussed in this Court's previous December 19, 2016
dismissal Order, before it addresses Plaintiff's motion
to vacate.
On July
18, 2014, Plaintiff filed a pro se “Civil Rights
Complaint” alleging seven counts for relief against 26
Defendants. In his Complaint, Plaintiff stated the following:
On June 26, 2012, at approximately 2232 hours (10:30 p.m.),
it was allegedly reported that plaintiff had committed an
incident of Forgery Fraud under A.R.S. Section 13-2002Al;
later the offense was changed to one of an attempt to commit
forgery. In Arizona, an attempt to commit forgery is a Class
5 felony.
Oddly enough, the incident was reported at the same time it
occurred. According to the incident summary, plaintiff
attempted to forge an ASU diploma by requesting by e-mail
that JFB Desktop Publishing, a California business entity not
registered with the Secretary of State of California and not
registered with the Arizona Secretary of State, remove the
name from a copy of a diploma plaintiff attached to the
email, and put plaintiff's name there instead. A charge
of Attempted Forgery was pending the result of a search
warrant.
It was alleged that plaintiff, at 2327 hours (11:27 p.m.), on
June 26, 2012, received an email from JFB Desktop Publishing
stating that JFB would need to obtain written authorization
from ASU before a diploma could be issued. Plaintiff never
received this email on his computer. Allegedly, JFB Desktop
Publishing then notified the Registrar's Office at ASU of
plaintiff's alleged request. The Registrar's Office
at ASU contacted the university's Office of the General
Counsel who in turn contacted the ASU Police.
On July 3, 2012, Jodi Prudhomme, Esq., Associate General
Counsel at ASU, issued a Cease & Desist letter which was
allegedly sent to plaintiff's email address, which
plaintiff never received on his computer or any other device
he owned. Interestingly enough, this document was not listed
among the documents the FBI found during its analysis of
plaintiff's computers.
Daniel F. Herrmann contacted plaintiff and asked him to come
to the ASU Police Station for an interview. When plaintiff
arrived at the ASU Police Station on July 11, 2012, he was
interviewed by FBI agent John Chipolsky and Daniel Herrmann.
During the July 11th interview, plaintiff denied having
knowledge of JFB Desktop Publishing; plaintiff also denied
contacting anyone to have a diploma made showing that he had
graduated from ASU. When plaintiff was shown the alleged
email exchanges between plaintiff and JFB Desktop Publishing,
plaintiff denied involvement in any way with the alleged
forgery.
On July 19, 2012, a search warrant was applied for and
granted. The Affidavit for Search Warrant executed by
defendant Daniel F. Herrmann included an averment that facts
concerning Herrmann's training and experience established
probable cause to issue the warrant. Herrmann also indicate
that he was a Special Deputy United States Marshal.
The Affidavit for Search Warrant does not cite the same
statute as the ASU Incident Report; the report cites A.R.S.
§ 13-2002Al while the Affidavit for Search Warrant cites
A.R.S. § 13-2002.A.2 as the statute that was violated.
A.R.S. § 13-2002 A2 provides that a person commits
forgery if, with intent to defraud the person knowingly
possesses a forged instrument. Upon information and belief,
plaintiff was never found to be in possession of a forged
instrument. Furthermore, if he was in possession of the
diploma, it was not a forgery as it contained the name of an
actual graduate of ASU.
The Probable Cause Statement portion of the Affidavit avers
that between June 29, 2012 and July 11, 2012, Herrmann
learned the following information. However, the Incident
Report indicates that Herrmann received a report on June 26,
2012 of the alleged incident; these dates are inconsistent.
Corporal Herrmann indicates in Paragraph 3 of the Probable
Cause Statement that he identified plaintiff through law
enforcement records and conversations with law enforcement
investigators as the user of email address
abubakar5500@yahoo.com.
On May 14, 2014, plaintiff requested a local records check
through the City of Phoenix Code Enforcement Unit of the
Phoenix Police Department; the request included a right index
fingerprint. The result of the request stated “[t]his
search is of Phoenix Police Department records only.”
The form also indicates that a search of Phoenix Police
Department computer files disclosed no record meeting
dissemination criteria for the name and date of birth that
were provided.
Clearly, the Phoenix Police Department had no records
concerning the name and date of birth of Abubakar Hussein
Ahmed nor an email address for him.
On April 18, 2014, plaintiff made a Freedom of Information
Act Request to the Federal Bureau of Investigation. The
request required plaintiff to send fingerprints to the FBI.
The result of this request was a letter indicating “[a]
search of the fingerprints provided by this individual has
revealed no prior arrest data at the FBI.” Therefore,
it appears that plaintiff had no record with the FBI.
However, the Maricopa County Arizona County Attorney's
Dispo Form indicates the 2012 case has FBI No. 280158RD5.
The veracity of Daniel Herrmann's averment in the
Probable Cause Statement portion of his Affidavit for Search
Warrant as to know how he obtained information regarding
plaintiff's DOB, Social Security Number and email address
is called into question since neither the Phoenix Police
Department nor the FBI had information regarding an arrest or
investigation of plaintiff as of 2014.
Later,
in his Complaint, Plaintiff stated:
The officers involved in the raid broke windows, broke a
glass entrance door and shot the door to a room three (3)
times. Damage was done to the residence in the amount of
$1573, excluding labor.
Plaintiff was arrested in his home and transported to the
Phoenix Police Department where plaintiff's fingerprints
and a mug shot were taken. After plaintiff was arrested and
taken to a holding facility, fingerprinted and a mug shot
taken, plaintiff returned home. On information and belief
this was a false ...