Fisher v. Bureau of Alcohol
| Decision Date | 17 February 2023 |
| Docket Number | 22-CV-6440-CJS |
| Parties | KEENAN FISHER, Plaintiff, v. BUREAU OF ALCOHOL, TOBACCO and FIREARMS (ATF), KYLE WILKINS (IOI), JOHN CURTIS (DOI), JOHN DeVITO, and agents/officers who entered our home without warrant 8/18 to intimidate (18 U.S.C. 1512) into no appeal, Defendants. |
| Court | U.S. District Court — Western District of New York |
DECISION and ORDER
Pro se Plaintiff, Keenan Fisher, filed this “Bivens” action seeking relief under 42 U.S.C. §1983, alleging that Defendants, who were federal agents acting under color of federal law, violated his federal constitutional rights under the First, Second, and Fourth Amendments to the U.S. Constitution. The Complaint further alleged, inter alia, that Defendants violated federal statutes, namely 18 U.S.C. § § 242, 1001, 1951, 1035 and 1512. Now before the Court is a proposed amended complaint (“PAC”) (ECF No. 7) and a motion for appointment of counsel (ECF No. 6). For the reasons discussed below, the motion for appointment of counsel is denied, all but one of the claims are dismissed and Fisher is required to submit a supplemental affidavit in support of his request to proceed in forma pauperis.
The reader is presumed to be familiar with the factual and legal history of this action. Briefly, on October 14, 2022, Keenan Fisher (“Plaintiff” or “Fisher”) proceeding pro se, purported to bring a federal civil rights Bivens action on behalf of himself and a limited-liability-company gun shop, Stea Rosie LLC (“Stea Rosie”). The Complaint also contained references to alleged civil rights violations against Fisher's live-in business associate/”secretary,” Theresa Krenzer (“Krenzer”), but did not list her as a party. Fisher also filed a motion for leave to proceed in forma pauperis.
The 9-page Complaint was directed at the following governmental activity, which was allegedly politically motivated and/or in retaliation for Fisher's expression of anti-police[1] views: The revocation of a federal firearms importer's license (FFL 08) issued to Stea Rosie by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”); harassment and the dissemination of defamatory statements about Fisher and Krenzer;[2]and an alleged incident on August 18, 2022 in which officers went to Fisher's and Krenzer's residence and attempted to intimidate them, and in which one ATF officer entered the apartment and physically assaulted Krenzer.[3] The Complaint referred to “civil rights and RICO violations” by “the defendant and its agents,” referring to the ATF. The Complaint alluded to the ATF working in coordination with members of the New York State Police (“NYSP”). However, the Complaint indicated that the action was brought solely against “federal officials,” and not “state or local officials.” In that regard, the Complaint specifically named as defendants the ATF and three ATF employees sued in their official capacities only: Kyle Wilkins (“Wilkins”), John Curtis (“Curtis”), and John DeVito (“DeVito”).
On December 20, 2022, the Court issued a Decision and Order (ECF No. 4) granting the application to proceed in forma pauperis, screening the Complaint pursuant to 28 U.S.C. § 1915(e), dismissing certain claims, and ordering that the remainder of the action would be dismissed with prejudice unless, within thirty days, Fisher filed an amended complaint that complied with the Court's Decision and Order (ECF No. 4). The Court dismissed all claims purportedly brought by anyone except Fisher himself, after explaining that since Fisher was proceeding pro se he could not pursue claims on behalf of anyone else. That is, the Court dismissed any claims purportedly brought by Fisher on behalf of Stea Rosie or Krenzer, including any claim relating to the revocation of Stea Rosie's firearms license and any claim “of financial injury related to injury to, or the cessation of, Stea Rosie's [gun shop] business operations.” Decision and Order (ECF No. 4) at p. 4.
The Court explained, however, that Fisher could pursue claims on his own behalf, provided that he filed an amended pleading that complied with the Decision and Order. Specifically, the Court was referring to the only remaining claims, i.e., claims alleging constitutional violations related to the alleged retaliatory harassment and defamation of Fisher and the incident at his home on August 18, 2022. In that regard, however, the Court explained that Fisher could not sue the ATF, or the individual defendants in their official capacities, for money damages, though he could attempt to sue Wilkins, Curtis, and Devito for such damages in their individual capacities, provided that he pleaded a basis to find personal involvement. The Court pointed out that the Complaint did not allege any personal involvement by Curtis or DeVito, and did not clearly state a claim against Wilkins. See, Decision and Order (ECF No. 4) at p. 8 (). Finally, the Court noted that to the extent Fisher was attempting to sue additional unnamed ATF agents who may have participated in the incident on August 18, 2022, he would need to list them as “John Does” in the amended pleading and describe each of them with as much specificity as possible.[4]
On January 20, 2023, still proceeding pro se, Fisher responded to the Court's Decision and Order by filing three documents: 1) a “response” to the Court's Decision and Order, ECF No. 5, captioned as a “RICO Case Statement”; 2) a motion to appoint counsel, ECF No. 6; and 3) the PAC, ECF No. 7.
The 146-page PAC bears little resemblance to the original 9-page Complaint, except that it still attempts to bring claims on behalf of others in addition to Fisher.[5]Specifically, in addition to Fisher, the proposed pleading now lists The Red Right Hand Rifle Syndicate LLC, the members thereof, and Krenzer, as plaintiffs. The PAC indicates that the Red Right Hand Rifle Syndicate (“Red Right Hand”) is the “d/b/a” assumed business name of the gun shop operated by Stea Rosie. Additionally, the PAC now lists, in addition to Wilkins, Curtis and DeVito, approximately 53 new defendants not mentioned in the original Complaint. The proposed new defendants include the United States, the U.S. Attorney General, various ATF employees, various New York State Officials including Governor Kathy Hochul, members of the NYSP, the New York Joint Terrorism Task Force, various officials of the Counties of Monroe and Ontario, and the Finger Lakes Railway Corporation.
Regarding claims by Red Right Hand/Stea Rosie, the PAC alleges that the federal defendants “violated” the Gun Control Act of 1968 by revoking Stea Rosie's federal firearms license (“FFL”) on inadequate grounds. In that regard, the PAC alleges that any failure by Stea Rosie to comply with rules for FFL license holders was non-willful, and therefore should not have resulted in the revocation of the license. The PAC describes an overall policy change by the Biden administration, to more aggressively monitor FFL license holders and revoke their licenses for non-willful technical violations of rules and regulations governing such licenses, which the PAC maintains is unlawful and inconsistent with past practices.
Concerning the alleged non-willful nature of any gun-law violations that may have resulted in the revocation of Stea Rosie's license, the PAC indicates, for example, that a 9mm pistol Fisher received in the mail in New York was sent to him due to an error by a distributor outside of New York.[6] Fisher then mailed the pistol, which was purchased for his personal use, to an out-of-state gunsmith to have modifications performed.[7] The PAC alleges that ATF Agent Wilkins improperly cited these incidents as evidence that Stea Rosie and/or Fisher had violated New York State gun laws.[8] The PAC further alleges that insofar as Stea Rosie was alleged to have engaged in firearms transactions without the proper New York State licenses, the licenses either were not required or their issuance was improperly delayed by New York State officials.[9]
Regarding Fisher and Krenzer, the PAC also sets forth an entirely new theory of recovery. More specifically, the original 9-page Complaint alleged Bivens claims, relating to retaliatory defamation and the alleged a warrantless entry into Fisher and Krenzer's home on one occasion in August 2022, while the 146-page proposed amended complaint purports to state a vast year-long RICO conspiracy to falsely investigate and prosecute Fisher and Krenzer, seize their firearms, kidnap them, rob them, and interfere with the interstate commerce of their gun shop.
The PAC essentially describes various firearms-related investigations and prosecutions that were initiated and/or maintained against Stea Rosie, Fisher, and/or Krenzer, by state and federal law enforcement officials, and labels those actions as crimes which, together, form the basis for the alleged RICO conspiracy. For example, the pleading, refers to an arrest of Plaintiff and Krenzer as a “kidnapping” and “carjacking;” to a law-enforcement seizure of alleged illegally-possessed weapons as a “robbery;” and to all of the law-enforcement personnel who participated in the investigations and arrests as “armed robbers,” “burglars,” “thugs,” “mobsters,” “goons,” “blue line gang members” and “conspirators.”[10]
More specifically, the PAC alleges that on January 27, 2022, ATF agents and NYSP officers committed a “kidnapping,” “armed robbery,” and “carjacking,” when they stopped Fisher and Krenzer's car and detained them for...
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