I. INTRODUCTION

20 Pending before the Court is the motion to dismiss filed by Defendant United States 21 of America (“Defendant” or “Government”), (ECF No. 11), as well as Plaintiff John Hobart 22 Zentmyer’s (“Plaintiff” or “Zentmyer”) motion for leave to file an amended complaint. 23 (ECF No. 17). The motions have been fully briefed by the parties. For the reasons set 24 forth below, Defendant’s motion to dismiss is GRANTED and Plaintiff’s petition for 25 declaratory and injunctive relief is DISMISSED. Plaintiff’s motion for leave is DENIED 26 as moot. 27 /// 28 1 II. BACKGROUND 2 In 2004, Plaintiff was convicted of five white collar crimes involving financial 3 matters and was subsequently incarcerated. (ECF No. 4 at 3). Plaintiff was released from 4 federal custody on May 8, 2014. (Id.). 5 On November 17, 2020 Plaintiff filed a lawsuit challenging the statutory prohibition 6 against possession of firearms as set forth in 18 U.S.C. § 922(g)(1). (ECF No. 1). Plaintiff 7 subsequently filed an amended petition on December 15, 2020. (ECF No. 4). 8 On February 1, 2021, the Government filed a motion to dismiss for lack of 9 jurisdiction, arguing that Plaintiff did not have the requisite standing to bring his challenge. 10 (ECF No. 11). Plaintiff responded in opposition to the Government’s motion, (ECF No. 11 14), to which the Government replied. (ECF No. 15). 12 On March 16, 2021, Plaintiff filed a motion for leave to file an amended complaint, 13 (ECF No. 17), which the Government opposed, (ECF No. 19), and to which Plaintiff 14 replied. (ECF No. 21). 15 III. LEGAL STANDARDS 16 A. Fed. R. Civ. Pro. 12(b)(1) 17 Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, defendants may seek 18 to dismiss a complaint for lack of subject matter jurisdiction. “Dismissal for lack of subject 19 matter jurisdiction is appropriate if the complaint, considered in its entirety, on its face fails 20 to allege facts sufficient to establish subject matter jurisdiction.” In re Dynamic Random 21 Access Memory Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008) (citation omitted). 22 And it is plaintiff’s burden to establish subject matter jurisdiction. United States v. Orr 23 Water Ditch Co., 600 F.3d 1152, 1157 (9th Cir. 2010). Where, as here, Defendant makes 24 a facial challenge to the pleadings under Rule 12(b)(1), “the court accepts the allegations 25 in the complaint as true and draws all reasonable inferences in the plaintiff's favor.” Stasi 26 v. Inmediata Health Grp. Corp., 501 F. Supp. 3d 898, 906 (S.D. Cal. 2020) (citing Wolfe 27 v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)). 28 1 B. Leave to Amend 2 Under the Federal Rules of Civil Procedure, leave to amend “shall be freely given 3 when justice so requires.” Fed.R.Civ.P. 15(a)(2). This policy is to be applied with extreme 4 liberality.” C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985 (9th 5 Cir. 2011) (quoting Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 6 2003)). This applies even more so when the matter involves pro se litigants, as a “pro se 7 litigant must be given leave to amend his or her complaint unless it is absolutely clear that 8 the deficiencies of the complaint could not be cured by amendment.” Alexander v. Jeffries, 9 12 F.3d 1105 (9th Cir. 1993). As to burden, “[t]he party opposing amendment bears the 10 burden of showing prejudice.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th 11 Cir.1987). 12 IV. ANALYSIS 13 A. Plaintiff Is Bringing a Pre-Enforcement Challenge to 922(g)(1) 14 First, the Court addresses Plaintiff’s characterization of his claims. In his opposition 15 to Defendant’s motion to dismiss, Plaintiff argues that he is not challenging the 16 constitutionality of 922(g)(1), and that Defendant’s efforts to construe his argument as such 17 are an “untrue characterization” of his claim. (ECF No. 14 at 3-4). Plaintiff further argues 18 that he is not bringing a pre-enforcement challenge to 922(1)(g), and is instead “bringing a 19 post-injury Fifth Amendment due process challenge to the constitutional sufficiency of the 20 indictment that would issue if he were to violate the statute.” (Id. at 4). Plaintiff contends 21 that his right “has already been chilled by the statute” and the “mere existence of 922(g)(1) 22 suffices for creating an injury in fact . . . because it denies his exercise of a constitutional 23 [r]ight.” (Id. at 4-5). 24 The Court disagrees. Plaintiff’s own complaint notes that he is “challenging the 25 enforcement of . . . the third of” of the three offenses listed in 18 U.S.C. 922(g)(1).” (ECF 26 No. 4 at 3; ECF No. 17 at 5). And in his proposed amended complaint, Plaintiff quotes 27 28 1 from a case addressing standing requirements for pre-enforcement challenges. (ECF No. 2 17 at 6) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)).1 3 Plaintiff has not been charged under 922(g)(1), and asks the court to “permanently 4 enjoin Defendant from prosecuting him with a constitutionally insufficient indictment 5 should Plaintiff choose to exercise his Second Amendment Right[.]” (ECF No. 1 at 5; ECF 6 No. 4 at 5) (emphasis added). In other words, Plaintiff is challenging the enforcement of 7 922(1)(g) before any proceeding has been initiated against him under the statute–a clear 8 pre-enforcement challenge. Moreover, the Ninth Circuit has previously treated a similar 9 claim as a pre-enforcement challenge. See San Diego Cty. Gun Rts. Comm. v. Reno, 98 10 F.3d 1121 (9th Cir. 1996). Accordingly, the Court addresses Plaintiff’s pleadings as a pre- 11 enforcement challenge to 922(1)(g). 12 B. Plaintiff Does Not Have Standing to Bring a Pre-Enforcement Challenge to 13 922(1)(g) 14 Next, the Court considers whether Plaintiff has standing to bring his pre-enforcement 15 challenge to 922(g)(1). A federal court’s judicial power is limited to “cases” or 16 “controversies”, and that requirement is satisfied only where a plaintiff has standing. Sprint 17 Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 273 (2008). Plaintiffs must establish 18 that: (1) they “suffered an ‘injury-in-fact’ to a legally protected interest that is both 19 ‘concrete and particularized’ and ‘actual or imminent’, as opposed to ‘conjectural’ or 20 ‘hypothetical’”; (2) there is “a causal connection between their injury and the conduct 21 complained of”; and (3) that it is “likely” and “not merely speculative” that “their injury 22 will be redressed by a favorable decision.” San Diego Cty, 98 F.3d at 1126 (citation 23

24 25 1 Plaintiff quotes the following language from Susan B. Anthony List: “When challenging a law prior to its enforcement, a plaintiff satisfies the injury-in-fact requirement where he 26 alleges ‘an intention to engage in a course of conduct arguably affected with a 27 constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.’” Susan B. Anthony List, 573 U.S. 149 (emphasis added) (quoting 28 1 omitted). “Because plaintiffs seek declaratory and injunctive relief only, there is a further 2 requirement that they show a very significant possibility of future harm; it is insufficient 3 for them to demonstrate only a past injury.” Id. (citation omitted). “Failure to satisfy any 4 of these three criteria constitutes a “lack of Article III standing [and] requires dismissal for 5 lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).” 6 Zentmyer v. United States, 2016 WL 4729556, at *2 (S.D. Cal. Sept. 12, 2016) (citation 7 omitted). 8 As a threshold matter, Plaintiff’s “Statement of Fact” and “Allegations” sections in 9 his instant and proposed amended complaints provide little in the way of factual 10 allegations, and consists primarily of legal references and analysis.2 Though, as the 11 Government notes, Plaintiff has previously brought three similar actions, (ECF No. 11 at 12 3-4), the Court considers the amended complaint in this action only; facts alleged in other 13 cases are not considered in the instant matter, as the complaint should be self-sufficient. 14 See, e.g. S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 15 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original”); 16 Lacey v. Maricopa County, 693 F.3d 896, 911 (9th Cir. 2012) (en banc) (explaining that 17 claims dismissed with leave to amend which are not re-alleged are waived); Schlienz v. 18 Pratt, 831 F. App'x 315 (9th Cir. 2020) (declining to “consider claims from [Plaintiff’s] 19 earlier complaints that were dismissed with leave to amend because [Plaintiff] failed to 20 replead them in his operative complaint.”) (citation omitted). 21 22 23

24 25 2 See, e.g., Welker v. United States, 664 F.2d 1384, 1386 (9th Cir. 1982) (suggesting that the district court “require [Plaintiff] to file a self-sufficient complaint (complete within its 26 four corners) without reference to an old complaint”); Palmer v. Cognizant Tech. Sols. 27 Corp., No. CV176848DMGPLAX, 2018 WL 4815757, at *7 (C.D. Cal. Sept. 24, 2018) (explaining that in a “facial challenge to standing”, the “Court’s analysis is typically 28 1 1. Plaintiff Has Not Established Injury-in-Fact 2 To establish “injury-in-fact” in the context of a pre-enforcement challenge to a 3 statute, in addition to the “concrete and particularized” and “actual and imminent” 4 requirements, plaintiffs must also show a “genuine threat of imminent prosecution.” San 5 Diego Cnty., 98 F.3d at 1126 (internal quotations omitted). Plaintiff argues that he has 6 suffered an injury-in-fact primarily because: (1) the existence of 922(1)(g) itself has injured 7 Plaintiff; (2) the chilling effect induced by 922(1)(g) is an injury-in-fact that creates 8 standing; and (3) the threat of prosecution under 922(1)(g) suffices as an injury-in-fact and 9 creates standing. Plaintiff’s first two arguments have been rejected by the Ninth Circuit, 10 and Plaintiff has not alleged sufficient facts to support his third argument. The Court 11 addresses each argument in turn below. 12 a. The Ninth Circuit Has Rejected the “Mere Existence” and “Chilling 13 Effect” Arguments as a Basis for Standing 14 Plaintiff claims that “his inherent and inalienable Right to keep and bear arms” is 15 infringed upon by the existence of 922(g)(1), which “has invaded Plaintiff’s legally 16 protected interest even though he has not violated the statute[.]” (ECF No. 14 at 2-3). 17 Plaintiff also argues that upon his conviction, “he became a member of the affected class”, 18 the “result” of which is “that Plaintiff has been denied the exercise of his constitutionally- 19 secured Right to keep and bear arms[.]” (ECF No. 17 at 6). In other words, Plaintiff 20 contends that the existence of the statute itself creates the injury. The Government argues 21 that this “purported injury is pure conjecture–it comes nowhere close to the type of 22 ‘concrete or particularized’ and ‘actual or imminent’ harm required to establish standing 23 for a pre-enforcement challenge.” (ECF No. 11 at 6). 24 The Court agrees with the Government; Plaintiff’s allegations fall short of the 25 “concrete or particularized” harm required. Moreover, the Ninth Circuit has routinely 26 rejected arguments claiming that the mere existence of a statute creates an injury. See, e.g., 27 San Diego Cnty, 98 F.3d at 1126 (explaining that the Ninth Circuit has “repeatedly 28 admonished, however, that ‘[t]he mere existence of a statute, which may or may not ever 1 be applied to plaintiffs, is not sufficient to create a case or controversy within the meaning 2 of Article III.’”); see also Western Mining Council v. Watt, 643 F.2d 618, 627 (9th Cir. 3 1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981) (same language). 4 To the extent that Plaintiff is arguing that the existence of the statute creates a “chilling 5 effect” on his exercise of Second Amendment rights, in turn creating a constitutionally 6 sufficient injury, that argument has been rejected by various courts. See, e.g., San Diego 7 Cty. Gun Rts. Comm., 98 F.3d at1129 (quoting Younger v. Harris, 401 U.S. 37, 51 (1971)) 8 (explaining that the “existence of a ‘chilling effect’ . . . has never been considered a 9 sufficient basis, in and of itself, for prohibiting . . . [government] action.”). 10 Plaintiff’s argument that (1) the existence of the statute creates the injury, as he is a 11 member of an affected class of individuals allegedly deprived of their Second Amendment 12 rights, and (2) the chilling effect induced by the statue creates an injury fall short of the 13 “concrete and particularized” and “actual and imminent” requirements, and have been 14 rejected by other courts. San Diego Cnty., 98 F.3d at 1126. Accordingly, the Court 15 likewise finds that Plaintiff’s arguments are unavailing. 16 b. Plaintiff Has Not Alleged Enough Facts For the Court to Find that the 17 Threat of Prosecution Grants Standing 18 Next, the Court considers whether the threat of prosecution under 922(1)(g) as 19 alleged by Plaintiff suffices as an injury-in-fact for standing purposes. The Government 20 argues that Plaintiff’s complaint should be dismissed because he “alleges no facts 21 whatsoever showing he faces a ‘genuine threat of imminent prosecution.’” (ECF No. 11 22 at 6). The Court agrees. The Ninth Circuit has instructed that when “evaluating the 23 genuineness of a claimed threat of prosecution,” courts should “look to whether the 24 plaintiffs have articulated a ‘concrete plan’ to violate the law in question, whether the 25 prosecuting authorities have communicated a specific warning or threat to initiate 26 proceedings, and the history of past prosecution or enforcement under the challenged 27 statute.” Thomas v. Anchorage Equal Rts. Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000). 28 However, “[w]hen the plaintiff has alleged an intention to engage in a course of conduct 1 arguably affected with a constitutional interest, but proscribed by a statute, and there exists 2 a credible threat of prosecution thereunder, he should not be required to await and undergo 3 a criminal prosecution as the sole means of seeking relief.” Babbitt, 442 U.S. at 298 4 (citation and internal quotation marks omitted). 5 Taking these considerations in turn, first, Plaintiff alleges no such plan in the 6 operative complaint. Though Plaintiff discusses a hypothetical involving Arizona in his 7 amended complaint, (ECF No. 4 at 3-4; ECF No. 17 at 4-5, 7-9), as the Government notes, 8 Plaintiff “has alleged no plan (concrete or otherwise) to obtain a firearm” and “has not 9 alleged any genuine or imminent threat of prosecution if he moved to Arizona and 10 purchased a firearm.” (ECF No. 11 at 7). While “it is not necessary that [plaintiffs] first 11 expose [themselves] to actual arrest or prosecution to be entitled to challenge” a statute, 12 Plaintiffs must still “alleg[e] an intention to engage in a course of conduct arguably 13 affected[.]” Id. He has failed to do so here. 14 Second, Plaintiff’s pleading in this action does not contain any clear allegation that 15 prosecuting authorities have communicated a specific warning or threat to initiate 16 proceedings. Though plaintiffs are required to show a “genuine threat of imminent 17 prosecution”, Plaintiff’s instant complaint fails to make any relevant allegations regarding 18 threats of enforcement. Washington Mercantile Ass'n v. Williams, 733 F.2d 687, 688 (9th 19 Cir. 1984); see also Darring v. Kincheloe, 783 F.2d 874, 877 (9th Cir. 1986) (“an 20 ‘imaginary or speculative’ fear of prosecution is not enough”) (citation omitted); Stoianoff 21 v. State of Mont., 695 F.2d 1214, 1223 (9th Cir. 1983) (“a plaintiff must demonstrate a 22 genuine threat that the allegedly unconstitutional law is about to be enforced against him”). 23 The mere “possibility of criminal sanctions applying does not of itself create a case or 24 controversy.” Boating Industry Ass'ns v. Marshall, 601 F.2d 1376, 1385 (9th Cir. 1979) 25 (citations omitted). 26 Third, Plaintiff declines to explain or discuss the past prosecution or enforcement of 27 922(1)(g), though it is his burden to do so, to the extent he seeks to establish standing 28 through this factor. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (“The party 1 invoking federal jurisdiction bears the burden of establishing these elements.”). Because 2 Plaintiff’s operative complaint does not articulate (1) a concrete plan to violate the statute, 3 (2) a threat of enforcement, or (3) an explanation of the past prosecution or enforcement of 4 922(1)(g), the Court finds that the threat of prosecution does not provide Plaintiff with 5 standing. 6 2. The Court Does Not Address Causal Connection & Redressability 7 In addition to injury-in-fact, Plaintiff must demonstrate that there is “a causal 8 connection between their injury and the conduct complained of” and that it is “likely” and 9 “not merely speculative” that “their injury will be redressed by a favorable decision.” San 10 Diego Cty, 98 F.3d at 1126 (citation and internal quotations omitted). Because Plaintiff’s 11 complaint cannot establish injury in fact, the Court finds that it need not address causal 12 connection and redressability. 13 C. Plaintiff’s Motion is Dismissed Without Prejudice 14 While the Government has asked the Court to dismiss the case “with prejudice”, 15 (ECF No. 11 at 2), the Court declines to do so here. Though Plaintiff’s amended complaint 16 and proposed amended complaint are both deficient insofar as their allegations fail to 17 establish standing to bring a pre-enforcement challenge, in light of Plaintiff’s pro se status, 18 the Court cannot find that “it is absolutely clear that the deficiencies of the complaint could 19 not be cured by amendment.” Alexander, 12 F.3d 1105 (9th Cir. 1993). Having said that, 20 as noted by the Government, Plaintiff has brought similar challenges in three prior actions, 21 each of which have been dismissed. (ECF No. 11 at 3-4). Although the Court allows 22 Plaintiff to amend his complaint here,3 Plaintiff is warned that his next amended complaint 23 should be self-sufficient (that is, complete without reference to other or prior complaints) 24 that contain the requisite factual allegations. See Welker, 664 at 1386. Plaintiff is warned 25 26 27 3 To be clear, the Court is referring to a future amended complaint, not Plaintiff’s pending 28 1 that Plaintiff’s failure to file a legally sufficient amended complaint will result in a 2 dismissal with prejudice. 3 D. Plaintiff’s Motion for Leave Is Moot 4 Even taking into account Plaintiff’s amended pleadings, Plaintiff has failed to 5 sufficiently allege facts supporting a finding of standing. Because Plaintiff’s proposed 6 amendments do not cure the deficiencies discussed above, Plaintiff’s pending motion for 7 leave is DENIED as futile, though the Court does, as stated herein, grant Plaintiff leave to 8 amend to file a new complaint, and not the legally deficient complaint currently 9 accompanying Plaintiff’s motion. (ECF No. 17 at 3-27). 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///

I V. CONCLUSION

2 Because Plaintiff cannot establish standing to bring a pre-enforcement challenge to 3 922(1)(g), the Court GRANTS Defendant’s motion to dismiss. Because the Court cannot 4 || find that no amendment would cure the deficiencies, the Court DISMISSES the complaint 5 || without prejudice. Plaintiff's motion for leave to amend is DENIED as moot, as the 6 || requested changes would not cure the deficiencies noted above. Plaintiff is directed to file 7 ||an amended complaint in forty-five (45) days of this Order. 8 Plaintiff's Amended Complaint must be complete in itself without reference to his 9 || original pleading. Any claims not re-alleged in the Amended Complaint will be considered 10 || waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n 11 |}amended pleading supersedes the original’); Lacey, 693 F.3d at 911 (9th Cir. 2012) (en 12 || banc) (explaining that claims dismissed with leave to amend which are not re-alleged are 13 || waived); Schlienz, 831 F. App'x 315 (declining to “consider claims from [plaintiffs] earlier 14 complaints that were dismissed with leave to amend because [plaintiff] failed to replead 15 them in his operative complaint.’’) (citation omitted). 16 IT IS SO ORDERED. 17 18 ||DATED: — March 30, 2022 | | M | } = 19 0 J HON. JOHN A. HOUSTON

UNITED STATES DISTRICT JUDGE

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