Price v. Indy Trading Post

MARK A. PRICE, JR. Plaintiff, v. INDY TRADING POST, Defendant.

No. 1:19-cv-001267-JMS-TAB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

May 26, 2020

ORDER

On May 7, 2019, the Court screened Plaintiff Mark A. Price, Jr.'s Complaint pursuant to 28 U.S.C. § 1915(e)(2), and concluded that Mr. Price's claims based on 18 U.S.C. § 922(d) and Ind. Code § 35-47-2-7 must be dismissed. [Filing No. 5.] The Court further concluded that Mr. Price's remaining claims should not proceed while his criminal matter, United States v. Mark Price, 1:18-cr-00348-JMS-MPB, remained pending, and the Court stayed Mr. Price's remaining claims and administratively closed this civil matter. [Filing No. 5.] Mr. Price was convicted following a jury trial of one count of possession of ammunition by a prohibited person, and two counts of possession of a firearm by a prohibited person. See United States v. Mark Price, 1:18-cr-00348-JMS-MPB (S.D. Ind. May 4, 2020), ECF No. 80. The Court has also denied Mr. Price's post-verdict motion. Id. at ECF No. 85. While Mr. Price has yet to be sentenced, a determination of his guilt is final. Accordingly, the Court now reopens this matter, lifts the stay on Mr. Price's remaining claims, and screens those claims.

I.SCREENING

A. Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2), the Court shall dismiss a case brought by a plaintiff proceeding in forma pauperis "at any time if the court determines that . . the action . . . is frivolous or malicious; . . . fails to state a claim on which relief may be granted; or . . . seeks monetary relief against a defendant who is immune from such relief." In determining whether a complaint states a claim, the Court applies the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal, the "complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. 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). Pro se complaints such as that filed by Mr. Price are construed liberally and held "to a less stringent standard than formal pleadings drafted by lawyers." Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (internal quotation omitted).

B. Background

The following are the factual allegations in the Complaint.

On October 10, 2018, Mr. Price went to the Indy Trading Post (the "Store") on his girlfriend's behalf to look at ammunition and ask questions about ammunition for her. [Filing No. 1 at 6.] At the time, Mr. Price was on parole and was prohibited by law from purchasing ammunition. [Filing No. 1 at 6.] The Store asked for Mr. Price's identification, as if a background check was necessary for the purchase of ammunition. [Filing No. 1 at 6.] The Store conducted the background check solely based on "racial profiling." [Filing No. 1 at 6]. A background checkwas not necessary because Mr. Price did not indicate he was interested in purchasing anything and because background checks are not required for the purchase of ammunition in Indiana. [Filing No. 1 at 6.] The Store confirmed—through an online public records search and through communications with Special Agent Brian Clancy of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF")—that Mr. Price had prior convictions and was therefore "ineligible" to purchase ammunition. [Filing No. 1 at 6.] Although the Store knew of Mr. Price's convictions, the Store did not advise Mr. Price that, due to his prior convictions, he was ineligible to purchase ammunition. [Filing No. 1 at 6.] Instead, the Store discriminated against Mr. Price and "targeted [him] for a crime because [he] was a black malefactor." [Filing No. 1 at 6.] The Store induced Mr. Price to place an order for ammunition, using a tactic called "mirroring,"¹ and by providing him with discounts and incentives and then refusing to return Mr. Price's money. [Filing No. 1 at 2.] Mr. Price would not have attempted to purchase the ammunition if he was "left alone" and not influenced by the Store. [Filing No. 1 at 3.] The Store placed an order for the ammunition for Mr. Price and told him that it would call him once the order was ready to be picked up. [Filing No. 1 at 6.]

On several occasions between October 12 and October 16, 2018, Mr. Price contacted the Store and attempted to rescind his purchase of the ammunition. [Filing No. 1 at 7.]² However, the Store refused to provide Mr. Price with a full refund and further encouraged him to continue withthe purchase by providing additional incentives including discounts on other items and free shooting range time for Mr. Price and his companion. [Filing No. 1 at 7.] Mr. Price reiterated to the Store that he had no intention of completing the transaction initiated on October 10, 2018 and that he wanted a cash refund. [Filing No. 1 at 7.]

On October 16, 2018, the Store contacted Mr. Price to advise him that the purchased ammunition was ready to be picked up. [Filing No. 1 at 8.] Mr. Price and his girlfriend went to the store to pick up the order and to purchase additional ammunition. [Filing No. 1 at 8.] Mr. Price's girlfriend did not have money with her, and she asked Mr. Price to pay for the ammunition for her, which he did. [Filing No. 1 at 8.] The following day, Mr. Price contacted the Store and advised that he would be returning the ammunition he purchased on his first visit because it was "an unnecessary purchase." [Filing No. 1 at 9.] The Store notified ATF Special Agent Clancy of Mr. Price's phone call and advised him that Mr. Price would be returning to the Store that day. [Filing No. 1 at 9.] When Mr. Price returned to the store, Special Agent Clancy was "acting in an un[der]cover capacity" and he and someone who worked for the Store "literally placed a gun in [Mr. Price's] hand, which constitutes a clear violation of the Federal Firearms Laws set forth." [Filing No. 1 at 9.] Mr. Price was only at the store that day to get a cash refund, and "[the ATF] along with [the Store] used that opportunity to apprehend [him] for a crime in which [the Store] originally manufactured." [Filing No. 1 at 9.]

In November 2018, Mr. Price was indicted in the United States District Court for the Southern District of Indiana for being a prohibited person in possession of ammunition. [Filing No. 1 at 2.] The Criminal Complaint, which initiated Mr. Price's criminal matter (preceding the formal Indictment and Superseding Indictment, which serve as the operative charging documents), alleged facts that track some of Mr. Price's allegations in this case: Mr. Price ordered ammunitionat the Store; Store employees asked for Mr. Price's identification; and Store employees contacted law enforcement when they found that Mr. Price had a prior felony conviction. Criminal Complaint, United States v. Mark Price, 1:18-cr-00348-JMS-MPB (S.D. Ind. Oct. 18, 2018), ECF No. 2 at 3. The Criminal Complaint indicates that on October 16, 2018, Mr. Price returned to the Store to purchase the ammunition. Id. The following day, Mr. Price returned to the Store to use the shooting range, and he was arrested. Id. at 4. On February 19, 2020, following a two-day jury trial, Mr. Price was convicted of one count of Felon in Possession of Ammunition and two counts of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). Superseding Indictment, United States v. Mark Price, 1:18-cr-00348-JMS-MPB (S.D. Ind. Aug. 7, 2019), ECF No. 43; Jury Verdict, United States v. Mark Price, 1:18-cr-00348-JMS-MPB (S.D. Ind. Feb. 19, 2020), ECF No. 80.

Mr. Price initiated this civil lawsuit on March 28, 2019, asserting several claims against the Store. [Filing No. 1.] Mr. Price alleges that the Store conspired with the ATF to: (1) entrap him into committing the crime of being a prohibited person in possession of ammunition; (2) discriminate against him based on his race; and (3) deprive him of his civil rights. Mr. Price asserts that he suffered the following damages due to "the [Store's] negligence and unlawful acts": "emotional distress, pain and suffering, wrongful incarceration, loss of wages, loss of schooling, loss of barber equipment, loss of barber clientel[e], loss of precious and essential time away from [his] spouse and children, damaged reputation, student loan debt, accumulation of bills, and loss of vehicle, clothes, [and] housing." [Filing No. 1 at 10.] Mr. Price seeks the following relief: damages in the amount of $500,000 plus interest and costs, revocation of the Store's federal firearms license, liquidation of the Store's inventory, closure of the Store's business located at 2851 Madison Ave., Indianapolis, IN 46225, and imprisonment and/or fines imposed on the Store("indictment charging [the Store] with the sale of ammunition to a prohibited person"). [Filing No. 1 at 4.]

C. Discussion

The bases of Mr. Price's claims are that the Store conspired with the ATF to entrap him into committing the crimes of which he was convicted, and the Store and the ATF were part of a conspiracy to deprive him of equal protection under the law due to his race. His claims are based on 42 U.S.C. § 1985(3), 42 U.S.C. § 1981, and the Fifth, Eighth, and Fourteenth Amendments to the Constitution, as well as claims of negligence and intentional infliction of emotional distress under state law. In its Order dated May 7, 2019, the Court stayed these claims pending the conclusion of Mr. Price's criminal matter. Now that the criminal matter has concluded, the Court will screen these claims in light of Mr. Price's convictions.

1. Entrapment Claim

Mr. Price alleges that the Store conspired with the ATF to entrap him and induce him to commit the crimes for which he was charged. [Filing...