Ahmed v. Arizona State University

          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 ...