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.