United States District Court, D. Arizona
Dominic U. Lanza United States District Judge.
before the Court is Plaintiff Michael Petramala's motion
for reconsideration. (Doc. 9.) As explained below, the motion
will be granted in part and denied in part.
background, on January 30, 2019, the Court issued a screening
order dismissing Petramala's pro se complaint.
(Doc. 7.) The screening order concluded that Count I of the
complaint (a Second Amendment challenge to various Arizona
and federal laws that prohibit the mentally ill from
possessing firearms) was foreclosed by settled Supreme Court
and Ninth Circuit law and that Petramala lacked standing with
respect to Count II of the complaint (a constitutional
challenge to Arizona's practice of requiring individuals
seeking to restore their firearm rights to pay an initial
filing fee) because judicially-noticeable records establish
that he has repeatedly attempted to establish his competency
and obtain the restoration of his firearm rights under A.R.S.
§ 13-925 and that the filing fees associated with that
process haven't impaired his ability to seek relief.
February 4, 2019, Petramala filed three documents with the
Clerk of Court. First, he filed a motion for reconsideration
of the screening order. (Doc. 9.) Second, he filed a
supplement to his motion for reconsideration. (Doc. 10.)
Third, he filed a notice of appeal to the Ninth Circuit.
(Doc. 11.) Petramala also filed a second supplement to his
motion for reconsideration a few days later. (Doc. 12.)
initial matter, even though Petramala has filed a notice of
appeal (a step that ordinarily divests a district court of
jurisdiction over the underlying case), the Court retains
jurisdiction to rule on the pending motion for
reconsideration. Fed. R. App. P. 4(a)(4)(B)(i) (“If a
party files a notice of appeal after the court announces or
enters a judgment-but before it disposes of any motion listed
in Rule 4(a)(4)(A)-the notice becomes effective to appeal a
judgment or order, in whole or in part, when the order
disposing of the last such remaining motion is
entered.”); Doc. 14 at 1 (“The [Ninth
Circuit's] records reflect that the notice of appeal was
filed during the pendency of a timely-filed motion listed in
Federal Rule of Appellate Procedure 4(a)(4), and that motion
is still pending in the district court. The February 4, 2019
notice of appeal is therefore ineffective until entry of the
order disposing of the last such motion outstanding.
Accordingly, proceedings in this court are held in abeyance
pending the district court's resolution of the pending
February 4, 2019 motion for reconsideration.”).
merits, the Court is not persuaded it should reconsider its
dismissal of Count I of the complaint. Although Petramala
identifies various cases showing that it may be possible to
assert an as-applied Second Amendment challenge, he overlooks
that the Ninth Circuit has already rejected his attempt to
raise such a challenge. Petramala v. U.S. Dep't of
Justice, 481 Fed. App'x 395, 396 (9th Cir. 2012)
(“The district court properly dismissed Petramala's
Second Amendment claim because Petramala's inclusion in
the National Instant Criminal Background Check System, after
being adjudicated as a ‘mental defective' under the
Gun Control Act of 1968, imposed constitutionally permissible
limits on his right to bear arms.”).
Count II, Petramala contends he has standing because, among
other things, “the filing fees complained of in this
action [were] only recently . . . enacted” and these
filing fees have prevented him from pursuing new restoration
proceedings. (Doc. 9 at 3.) Liberally construed, these
allegations (which were not asserted in the complaint)
suggest Petramala may have standing to pursue Count II of his
complaint. Accordingly, the Court is persuaded that it should
reconsider its decision to dismiss Count II on standing
another problem remains. The complaint identifies three
defendants: (1) the State of Arizona, (2) the United States
Attorney General, and (3) the United States. Dismissal is
warranted as to the two federal defendants because Count II
only challenges the filing fees charged by Arizona as part of
its state restoration process. Moreover, Petramala's
effort to sue “the State of Arizona” is improper
under the Eleventh Amendment. Cf. Mach v. Arizona,
2011 WL 4101159, *2-3 (D. Ariz. 2011) (“The State of
Arizona and the Arizona Department of Corrections are not
proper Defendants. Under the Eleventh Amendment to the
Constitution of the United States, a state or state agency
may not be sued in federal court without its consent. . . .
Therefore, . . . because Defendant State of Arizona is the
only proper Defendant in Count Two, the Court will dismiss
defect is potentially curable. Thus, the Court will
reconsider its screening order to the extent it dismissed
Count II of the complaint with prejudice. Within 30 days,
Petramala may submit a first amended complaint to cure the
deficiencies outlined above. A first amended complaint
supersedes the original 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 as nonexistent. Ferdik,
963 F.2d at 1262. Any cause of action that was raised in the
original complaint and that was voluntarily dismissed or was
dismissed without prejudice is waived if it is not alleged in
a first amended complaint. Lacey v. Maricopa County,
693 F.3d 896, 928 (9th Cir. 2012) (en banc).
IT IS ORDERED that:
(1) Plaintiff s motion for reconsideration (Doc. 9) is
granted in part and denied in part;
(2) The judgment (Doc. 8) is vacated; and
(3) The complaint (Doc. 1) is dismissed for
failure to state a claim. The dismissal is with prejudice as
to Count I and as to defendants the United States Attorney
General and the United States. Plaintiff has 30
days from the date of this Order to ...