United States District Court, D. New Hampshire
Mohammed Ahmed Hassan, Abdallah Omran other Mohammed Abdallah, Plaintiff, Pro se, Shreveport, LA.
John C. Nivison, United States Magistrate Judge.
This civil action arises out of a criminal prosecution of Plaintiff in the United States District Court for the District of New Hampshire, which prosecution terminated following the Court's grant of the Government's motion to dismiss the indictment.
Plaintiff alleges that the Court, the Assistant United States Attorney, and Plaintiff's court-appointed counsel conspired to deprive him of his constitutional rights and to cover up misconduct by law enforcement officers. Plaintiff has also asserted claims against the Office of Defender Services, the United States, the New Hampshire Attorney Discipline Office, and fourteen attorneys who work for the Attorney Discipline Office.
Plaintiff filed an application to proceed in forma pauperis, which application the Court granted. In accordance with 28 U.S.C. § § 1915 and 1915A, a preliminary review of Plaintiff's complaint is appropriate. Following the review, I recommend that the Court dismiss Plaintiff's complaint without service of process.
Standard of Review
When a party is proceeding in forma pauperis, " the court shall dismiss the case at any time if the court determines, " inter alia, that the action is " frivolous or malicious" or " fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B). " Dismissals [under 28 U.S.C. § 1915] are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints." Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); see also Mallard v. U.S. Dist. Ct. S.D. Iowa, 490 U.S. 296, 307-308, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989) (" Section 1915(d) ... authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.").
In addition to the review contemplated by § 1915, Plaintiff's complaint is subject to screening under the Prison Litigation Reform Act because Plaintiff currently is incarcerated in Louisiana and seeks redress from governmental entities and officers. See 28 U.S.C. § 1915A(a), (c). The § 1915A screening requires courts to " identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim ...; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b).
When considering whether a complaint states a claim for which relief may be granted, courts must assume the truth of all well-plead facts and give the plaintiff the benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be granted if it does not plead " enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " The relevant question ... in assessing plausibility is not whether the complaint makes any particular factual allegations but, rather, whether 'the complaint warrant[s] dismissal because it failed in toto to render plaintiffs' entitlement to relief plausible.'" Rodrí guez--Reyes v. Molina--Rodrí guez, 711 F.3d 49, 55 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 569 n. 14 (2007)). Although a pro se plaintiff's complaint is subject to " less stringent standards than formal pleadings drafted by lawyers, " Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the complaint may not consist entirely of " conclusory allegations that merely parrot the relevant legal standard, " Young v. Wells Fargo, N.A., 717 F.3d 224, 231 (1st Cir. 2013). See also Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980) (explaining that the liberal standard applied to the pleadings of pro se plaintiffs " is not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a claim").
The facts set forth herein are derived from the factual allegations in Plaintiff's Complaint, which facts are deemed true when evaluating the Motion to Dismiss. Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998). In addition, I take judicial notice of the docket in the underlying criminal case, which is a public record within the meaning of Fed.R.Civ.P. 12(b)(6) and Fed.R.Evid. 201. See In re Mailman Steam Carpet Cleaning Corp., 196 F.3d 1, 8 & n.2 (1st Cir. 1999) (explaining that a court may take judicial notice of its own docket).
The Underlying Criminal Case
On September 5, 2012, the Government filed the Grand Jury's indictment, which charged Plaintiff, an Egyptian national, with falsely and willfully misrepresenting himself as a citizen of the United States on employment eligibility verification forms, in violation of 18 U.S.C. § 911. (Case No. 1:12-cr-117-01, Document 1.) The Court appointed Assistant Federal Defender Bjorn Lange to represent Plaintiff. Plaintiff stipulated to detention pending trial and remained in detention during the pendency of the case.
In December 2012, in support of a request for new counsel, Plaintiff asserted that his counsel's (Defendant Lange's) investigation was inadequate and that communication between them had broken down. (Document 15.) Additionally, Plaintiff, without the assistance of his counsel, requested leave to pursue a motion for the return of seized property and sought to suppress certain evidence within the seized property. (Documents 16 & 17.) Upon receipt of Plaintiff's filings, the court promptly held a status conference. Prior to the court proceeding, the court met with Defendant's counsel (Defendant Lange) and the Assistant United States Attorney (Defendant Gunnison) in chambers.
On December 4, the court granted Plaintiff's request to dismiss his counsel,  appointed Attorney Andrew Schulman as substitute counsel, and denied without prejudice the motions to proceed pro se regarding the return of property and suppression of evidence. In denying the motions, the court noted that the motions were procedurally improper because they were not filed by counsel.
On December 14, 2012, Plaintiff filed a motion to proceed pro se and for the appointment of standby counsel. (Document 25.) On January 1, 2013, Attorney Shulman, contrary to Plaintiff's direction, filed a motion to dismiss the indictment, asserting that 18 U.S.C. § 911 is overbroad and violates the First Amendment. (Document 26.) On January 7, Plaintiff moved to withdraw the motion to dismiss. (Document 27.)
The Court scheduled a hearing on the pending matters for January 7, 2013. Before the hearing, the court met in chambers with Attorney Schulman and AUSA Gunnison. The hearing revealed that Plaintiff advised Attorney Schulman not to file the motion to dismiss because Plaintiff preferred to go to trial to " expose the government misconduct" that lead to his arrest and prosecution. (Transcript of Motion Hearing at 20, Document 44.) Additionally, Plaintiff and Attorney Schulman disagreed about the existence of grounds to file a motion to suppress pursuant to Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). (Id. at 8.) At the conclusion of the hearing, the Court took the matters under advisement.
During the January 7 hearing, Plaintiff argued that the investigating officer, " Officer Bleezarde, " falsely represented in a search warrant application that Plaintiff's roommate/landlord informed law enforcement about the existence of one or more incriminating files on Plaintiff's computer after conducting her own search of the computer in Plaintiff's absence. According to Plaintiff, the roommate could not possibly have searched the computer because of the complex logon password, which was not available to the roommate. Attorney Schulman represented to the court that he prepared a motion for a forensic evaluation of the computer to determine whether anyone accessed the computer before completion of the search warrant application. (Transcript of Motion Hearing at 17, Document 44.) The court expressed its preference for a forensic examination of the computer to assess whether Defendant had a basis for the proposed Franks motion. (Id. at 17-18.)
At the hearing, Plaintiff asserted that although he wanted the forensic examination ( id. at 17), he also wanted to withdraw the motion to dismiss the indictment because he " would like to prove during the course of this trial that my rights have been violated and the government has violated my privacy" ( id. at 19). The presiding judge expressed concern about Plaintiff's proposed course of action. He explained to Plaintiff that the purpose of the criminal trial was to assess Plaintiff's guilt or innocence, and that if his primary reason for wanting the motion to dismiss withdrawn was to expose government misconduct, he should bring a civil lawsuit rather than forfeit a defense to the criminal charges. (Id. at 19-22.) The court reserved ruling on the motion to proceed pro se . (Id. at 23-24.) On ...