Ronald Fosnight v. Robert Jones

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 20-1033
RONALD D. FOSNIGHT and
PARAKLESE TECHNOLOGIES, LLC,
Plaintiffs-Appellants,
v.
ROBERT JONES, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:19-cv-00134-JMS-DML — Jane Magnus-Stinson, Judge.
____________________
SUBMITTED DECEMBER 3, 2020 * — DECIDED JULY 27, 2022
____________________
Before SYKES, Chief Judge, and FLAUM and ST. EVE, Circuit
Judges.
*We granted the parties’ joint motion to waive oral argument, and the
appeal is therefore submitted on the briefs and the record. See FED. R.
APP. P. 34(a)(2)(C).
2 No. 20-1033
SYKES, Chief Judge. Paraklese Technologies, LLC, makes
and sells “solvent traps” and other firearm accessories at its
facility in southern Indiana. A solvent trap is a cleaning
accessory; it attaches to the barrel of a gun during the clean-
ing process. The device can also be converted to a silencer,
and federal law prohibits conversion without approval from
the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATF”). In 2017 ATF agents executed a search warrant at
Paraklese’s Indiana facility and seized about $21,000 worth
of inventory.
Two years later Paraklese and its owner Ronald Fosnight
sued named and unnamed ATF agents seeking damages
arising from the search and seizure. The suit invokes Bivens
v. Six Unknown Named Agents of the Federal Bureau of Narcot-
ics, 403 U.S. 388 (1971), and raises claims under the Fourth
Amendment and the Due Process Clause of the Fifth
Amendment. The district court dismissed the complaint for
failure to state a claim.
We affirm. A search pursuant to a valid warrant is pre-
sumptively reasonable under the Fourth Amendment. The
district judge took judicial notice of the warrant, and the
complaint alleges no facts challenging its validity or the
reasonableness of the agents’ conduct during the search. Nor
is there even a hint of a legal or factual basis for the Fifth
Amendment claim. The judge properly dismissed the case in
its entirety and with prejudice.
I. Background
Paraklese manufactures solvent traps at its facility in
Georgetown, Indiana. Solvent traps are cleaning accessories
that can be attached to the barrel of a firearm. They can also
No. 20-1033 3
be converted to silencers. The traps themselves are legal to
possess, but conversion of a trap to a silencer without ATF
approval is illegal; silencers must be registered. See 26 U.S.C.
§§ 5845(a), 5861.
The complaint is rambling and unfocused, but we discern
the following basic factual allegations. On June 20, 2017,
Agents Robert Jones and Bradley Leveritt and unknown
other agents from the ATF’s Louisville Field Division
searched Paraklese’s Georgetown facility pursuant to a
search warrant issued by a federal magistrate judge in the
Southern District of Indiana. 1 The federal agents were
accompanied by officers of the Indiana State Police.
When the agents arrived, they informed Fosnight, the
owner of the company, that they had a sealed warrant to
search the facility and a “determination letter” from the ATF
concluding that Paraklese’s solvent traps were illegal silenc-
ers. Fosnight has never seen the determination letter despite
asking for it during the search and twice requesting it under
the Freedom of Information Act. The complaint contends
that the letter does not exist.
During the search, which lasted more than two hours, the
ATF agents seized $21,000 worth of solvent traps. Agent
Leveritt said they’d be back if Paraklese continued to manu-
facture and sell solvent traps. Agent Jones told Fosnight that
if he continued to sell solvent traps that could be used as
silencers, he would lose his federal firearms license.
1 The complaint does not mention this detail about the issuing magis-
trate. As we explain later, the warrant was in the public record by the
time of the dismissal motion, and the district judge properly took judicial
notice of it.
4 No. 20-1033
Throughout the search, unidentified ATF agents “persistent-
ly interrogated” Fosnight without giving him Miranda
warnings.
After the search Agent Jones paid a visit to a third-party
machinist shop that Fosnight used in the manufacturing
process. Following this visit, the owner of the shop was too
afraid to do further business with Paraklese, and Fosnight
hasn’t been able to find another machinist. The ATF retained
the seized solvent traps for more than 24 months.
In June 2019 Fosnight and Paraklese (collectively
“Fosnight”) filed a Bivens action against Agents Jones and
Leveritt; Agent Cory Goldstein; Agent Anastasio (first name
unknown); and other unknown ATF agents. The complaint
seeks damages arising from the search and seizure and
alleges claims for violation of the Fourth Amendment and
the Due Process Clause of the Fifth Amendment.
The defendants moved to dismiss for failure to state a
claim. See FED. R. CIV. P. 12(b)(6). They asked the court to take
judicial notice of the search warrant, which by that time was
in the public record. The judge did so. She then charitably
evaluated the alleged constitutional claims, ruling that the
complaint failed to plead any facts plausibly suggesting that
any defendant—known or unknown—violated the Fourth or
Fifth Amendments. For starters, Agents Goldstein and
Anastasio appear in the complaint in name only. The judge
noted that no allegations connect either of them to the search
(though the complaint mentions that an agent named
Anastasio is listed on an ATF property receipt related to the
search). And the complaint says nothing at all about the
conduct of the unnamed agents.
No. 20-1033 5
The allegations against Agents Jones and Leveritt, though
somewhat more specific, fared no better as a legal or factual
matter. The judge explained that the existence of the warrant
made the search presumptively valid under the Fourth
Amendment, and the failure to issue Miranda warnings
wasn’t a constitutional violation.
Finally, the judge could not discern any possible legal or
factual basis for a due-process claim. Neither the complaint
nor Fosnight’s response to the dismissal motion clarified
which component of the due-process right—substantive or
procedural—was violated or how. The judge gamely ad-
dressed both theories. She first explained that because the
Fourth Amendment addressed the legality of the search and
seizure, it was improper to consider the same claim under
the rubric of substantive due process. See Brokaw v. Mercer
County, 235 F.3d 1000, 1017 (7th Cir. 2000). And the availabil-
ity of meaningful post-seizure remedies under the Federal
Tort Claims Act conclusively barred any possible claim for
inadequate pre-seizure process. Alternatively, the judge held
that all claims, whether under the Fourth or Fifth Amend-
ment, were barred by qualified immunity.
Fosnight’s response to the dismissal motion included a
passing request for leave to amend the complaint, but it was
nothing more than two sentences of boilerplate. The judge
declined to permit an amended pleading and dismissed the
case with prejudice.
II. Discussion
We review the judge’s dismissal order de novo, accepting
as true the facts alleged in the complaint and drawing
reasonable inferences in Fosnight’s favor. Cheli v. Taylorville
6 No. 20-1033
Cmty. Sch. Dist., 986 F.3d 1035, 1038 (7th Cir. 2021). To sur-
vive a motion to dismiss, the complaint must allege “enough
facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
Judicial-notice rulings are reviewed for abuse of discre-
tion, Gen. Elec. Cap. Corp. v. Lease Resol. Corp., 128 F.3d 1074,
1081 (7th Cir. 1997), and that same standard applies to the
denial of leave to amend the complaint, Bd. of Forensic Docu-
ment Exam’rs, Inc. v. Am. Bar Ass’n, 922 F.3d 827, 830–31 (7th
Cir. 2019). Finally, “[w]e review the validity of a qualified
immunity defense de novo.” Est. of Escobedo v. Martin,
702 F.3d 388, 404 (7th Cir. 2012).
Fosnight’s appellate brief, like his complaint, is rambling
and hard to follow. Indeed, large passages of it are para-
graphs simply lifted verbatim from the complaint. There is
almost no coherent engagement with the judge’s reasons for
dismissing the case.
As best we can tell, the primary argument on appeal
seems to be a challenge to the judge’s decision to take judi-
cial notice of the search warrant. That’s a nonstarter. Rule
201(b)(2) of the Federal Rules of Evidence permits the court
to take judicial notice of facts that “can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.” It’s well established that judges
may take judicial notice of matters of public record when
ruling on a motion to dismiss. Gen. Elec. Cap. Corp., 128 F.3d
at 1080–81. And “[t]aking judicial notice of matters of public
No. 20-1033 7
record need not convert a motion to dismiss into a motion
for summary judgment.” Ennenga v. Starns, 677 F.3d 766, 773
(7th Cir. 2012); see also Geinosky v. City of Chicago, 675 F.3d
743, 745 n.1 (7th Cir. 2012). Nor are we, as a reviewing court,
“precluded in our review of the complaint from taking
notice of items in the public record.” Papasan v. Allain,
478 U.S. 265, 268 n.1 (1986).
We’ve long held that district courts can take judicial no-
tice of public court documents and proceedings when con-
sidering a Rule 12(b)(6) motion. Collins v. Village of Palatine,
875 F.3d 839, 842 (7th Cir. 2017); Ewell v. Toney, 853 F.3d 911,
914, 917 (7th Cir. 2017); Henson v. CSC Credit Servs., 29 F.3d
280, 284 (7th Cir. 1994). The existence of the warrant author-
izing the search at issue in this case is a “fact[] readily ascer-
tainable from the public court record and not subject to
reasonable dispute.” Ennenga, 677 F.3d at 774. There is no
conceivable basis to question the judge’s decision to take
judicial notice of the warrant.
The existence of the warrant authorizing this search
dooms the Bivens claims from the get-go. A search conducted
pursuant to a valid search warrant is “presumptively valid.”
Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017); see also
Lange v. California, 141 S. Ct. 2011, 2017 (2021). The complaint
does not allege any facts calling into question the validity of
the warrant, nor does it allege that the agents exceeded its
scope—say, for example, by searching a location not de-
scribed with particularity in the warrant. See Groh v. Ramirez,
540 U.S. 551, 557 (2004) (discussing the particularity re-
quirement). Nor are there any allegations that the agents
unreasonably damaged or destroyed property during the
8 No. 20-1033
search. See Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir.
2017).
In short, the complaint is simply devoid of any allega-
tions that might plausibly rebut the presumptive validity of
the search or support an inference that the agents committed
a constitutional violation while executing the warrant.
Accordingly, the complaint fails to allege a constitutional
violation that could possibly form the basis for a Bivens
action against any of the agents.
If the abject failure to allege a constitutional violation
isn’t enough to affirm the judgment (it is), Fosnight’s conclu-
sory allegations face another problem. There’s nothing that
links the allegations to the individual agents he has chosen
to sue. A Bivens action can succeed only against a defendant
who has personally violated the plaintiff’s constitutional
rights. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017)
(“[A] Bivens claim is brought against the individual official
for his or her own acts, not the acts of others.”); FDIC v.
Meyer, 510 U.S. 471, 485 (1994) (“[T]he purpose of Bivens is to
deter the officer.”); Gossmeyer v. McDonald, 128 F.3d 481, 494
(7th Cir. 1997) (“In order to state a cause of action under
Bivens, the plaintiff must allege facts which show that the
individual defendant was personally involved in the depri-
vation of the plaintiff’s constitutional rights.”). Thus,
Fosnight can prevail only if he explains how the agents
personally violated his constitutional rights.
As the district judge noted, the complaint contains no
factual allegations regarding Agents Goldstein and
Anastasio and the unknown agents. It does not accuse them
of any wrongdoing or even explain their roles in the
No. 20-1033 9
Paraklese search, so the judge properly dismissed them from
the suit on this additional basis.
That leaves Agents Jones and Leveritt. The allegations
about their role are at least a bit more specific. The complaint
alleges that they violated the Fourth Amendment by failing
to issue Miranda warnings during the search. 2 Miranda
warnings, of course, have nothing to do with the Fourth
Amendment; they are prophylactic rules to safeguard the
Fifth Amendment right against compulsory self-
incrimination. Vega v. Tekoh, 142 S. Ct. 2095, 2101–02 (2022).
Moreover, the mere failure to give Miranda warnings is not a
constitutional violation. Chavez v. Martinez, 538 U.S. 760, 772
(2003). Rather, the Miranda rule requires the exclusion at a
criminal trial of incriminating statements made by the
defendant in the absence of warnings. Id. at 770–73; Michigan
v. Tucker, 417 U.S. 433, 444 (1974). And the final blow to this
theory of liability: the Supreme Court recently made clear
that a Miranda violation is not redressable in a suit for dam-
ages against a law-enforcement officer. Vega, 142 S. Ct. at
2107.
The complaint makes a few additional allegations against
Agents Jones and Leveritt. These include Agent Jones’s
alleged visit to the machinist, Agent Leveritt’s warning that
the ATF would be back if Paraklese sold illegal solvent traps
again, and Agent Jones’s warning that Fosnight would lose
his firearms license if he continued to manufacture solvent
2 We infer, as the district judge did, that Agents Jones and Leveritt were
the ones who questioned Fosnight during the search. As we’ve noted, the
complaint doesn’t specifically say, but to the extent that it mentions any
particular person’s involvement in the search, it’s these two.
10 No. 20-1033
traps that could be used as silencers. Even if true, none of
this conduct amounts to a constitutional violation. The
complaint also alleges that the agents failed to produce the
“determination letter” during the search, while at the same
time alleging that the letter does not exist. Like the district
judge, we struggle to understand how the failure to produce
a nonexistent letter could possibly violate the Constitution.
We turn now to the complaint’s invocation of the Due
Process Clause of the Fifth Amendment. Fosnight seeks
Bivens damages for the seizure of the solvent traps, but the
judge could not find any factual or legal hook for this claim
anywhere in the complaint. Although we see no flaw in her
reasoning, Fosnight clearly waived appellate review of it.
The only mention of “due process” in Fosnight’s appellate
brief comes from passages copied and pasted from the
complaint and a block quote of the text of the Fifth Amend-
ment. Because the brief makes no effort to apply due-process
principles to the facts alleged in the complaint, any challenge
to the judge’s ruling on this claim is waived. 3 See Soo Line
R.R. Co. v. Consol. Rail Corp., 965 F.3d 596, 601 (7th Cir. 2020)
(“[A] conclusory argument that amounts to little more than
an assertion does not preserve a question for our review.”).
Finally, any challenge to the judge’s alternative ruling—
based on qualified immunity—is frivolous. Qualified im-
munity protects government officials from damages liability
unless they “violate clearly established statutory or constitu-
3 We note for completeness that the Supreme Court has never authorized
a Bivens action for the seizure of property. The Court has repeatedly—
and very recently—reminded us that expanding the Bivens remedy “is ‘a
disfavored judicial activity.’” Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022)
(quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)).
No. 20-1033 11
tional rights.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Once the defense is raised, the plaintiff bears the burden of
defeating it by showing (1) “that the defendant violated a
constitutional right” and (2) that the constitutional right at
issue “was clearly established at the time of the alleged
violation.” Archer, 870 F.3d at 613. “A failure to show either is
fatal for the plaintiff’s case … .” Id. The district court may
entertain a qualified-immunity defense on a defendant’s
motion to dismiss. See Ewell, 853 F.3d at 920 (“Although
qualified immunity is sometimes a factual question better
reserved for summary judgment, here the pleadings and
items subject to judicial notice support immunity for the
detectives.”); Chasensky v. Walker, 740 F.3d 1088, 1093–99 (7th
Cir. 2014).
The analysis here ends at step one. For the reasons al-
ready explained, the complaint utterly fails to allege any
facts plausibly showing any constitutional violation by any
defendant. The judge’s qualified-immunity ruling was
manifestly correct.
We note in closing that the judge reasonably declined to
grant leave to file an amended complaint. Rule 15(a)(1) of
the Federal Rules of Civil Procedure permits a plaintiff to
amend his complaint once without leave within 21 days of a
defendant’s motion to dismiss. Fosnight did not meet this
deadline. A plaintiff thereafter needs either the defendant’s
consent or the court’s permission to amend his complaint.
FED. R. CIV. P. 15(a)(2).
We have held that a plaintiff should ordinarily be given
one opportunity to amend his complaint, but the judge
reasonably declined to follow that preferred practice here.
Granting leave to amend is pointless when the plaintiff fails
12 No. 20-1033
to “suggest to the court the ways in which [he] might cure
the defects.” Haywood v. Massage Envy Franchising, LLC,
887 F.3d 329, 335 (7th Cir. 2018). A plaintiff should “offer [a]
meaningful indication of how [he] would plead differently.”
Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 943
(7th Cir. 2012). Without such a showing, the court is “within
its discretion to dismiss with prejudice.” Haywood, 887 F.3d
at 335.
As we’ve noted, Fosnight’s request for leave to amend
consisted of two conclusory sentences at the end of his
response to the motion to dismiss. There was no hint that the
defects identified in the motion could be cured, much less
any explanation of how. Under these circumstances, the
judge reasonably exercised her discretion to deny an oppor-
tunity to amend. The dismissal with prejudice is AFFIRMED.