Diaz v. United States of America

Filing 3

ORDER Dismissing Complaint Without Leave To Amend re 1 . Signed by JUDGE J. MICHAEL SEABRIGHT on 3/1/12. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOSE DIAZ,

)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
Defendant.
)
_____________________________ )

CV. NO. 12-00123 JMS/RLP
CR. NO. 06-00406 JMS
ORDER DISMISSING
COMPLAINT WITHOUT
LEAVE TO AMEND

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
I. INTRODUCTION
On February 2, 2012, pro se inmate Jose Diaz (“Diaz”) filed a Motion
for Return of Property Pursuant to Rule 41(g) (“Motion for Return of Property”).
Specifically, Diaz seeks the return of $14,873 seized by Drug Enforcement
Administration agents upon his May 7, 2005 arrest in Stanislaus County,
California. The government filed an opposition on February 27, 2012. The court,
construing the Motion for Return of Property as a civil complaint and subject to
///
///
///

the Federal Rules of Civil Procedure,1 screens the Complaint pursuant to 28
U.S.C. § 1915A and DISMISSES it without leave to amend.
II. BACKGROUND
On August 2, 2006, Diaz was charged in a three count Information
with: 1) conspiracy to possess with intent to distribute in excess of 50 grams of
methamphetamine, its salts, isomers, and salts of its isomers (count 1); 2) criminal
forfeiture, seeking the forfeiture of $30,200 seized on October 18, 2004 from a
mail parcel addressed to Defendant’s address (count 2); and 3) criminal forfeiture,
seeking the forfeiture of $14,873 seized on May 7, 2005 from Defendant’s
residence (count 3).2
On that same day, Diaz waived his right to grand jury indictment and
entered pleas of guilty to all three counts of the Information pursuant to a Plea

1

Because Diaz’ criminal case is no longer pending, the Motion for Return of Property is
construed as a civil complaint seeking equitable relief, and subject to the Federal Rules of Civil
Procedure. See United States v. Ritchie, 342 F.3d 903, 906 (9th Cir. 2003) (“If a Rule 41[(g)]
motion is filed when no criminal proceeding is pending, the motion is treated as a civil complaint
seeking equitable relief.”); United States v. Ibrahim, 522 F.3d 1003, 1007 (9th Cir. 2008)
(finding that when no criminal case is pending, a Rule 41(g) motion is governed by the Federal
Rules of Civil Procedure).
2

In this screening order, the court takes judicial notice of the filings in Diaz’ underlying
criminal case, United States v. Diaz, Cr. No. 06-00406 JMS. See Reyn’s Pasta Bella v. Visa
USA, 442 F.3d 741, 746 n.6 (9th Cir. 2006) (finding that the court “may take judicial notice of
filings and other matters of public record”).
2

Agreement.3 In the Plea Agreement, Diaz consented and agreed to the forfeiture of
the $14,873 seized on May 7, 2005. Plea Agreement ¶¶ 6, 7C. During the change
of plea hearing, Diaz confirmed under oath that he understood count 3. When
asked by the court if he had any questions regarding the forfeiture, Diaz’ counsel
stated that “[h]e just had a question about what was going to happen to the money.
I told him the money would be lost, would be turned over to the government.”
Doc. No. 57 at 14. Upon further questioning, Diaz then affirmed that he
understood that by pleading guilty, he was “giving up any rights” that he may have
to the $14,873. Id. Later, Diaz explained that he had purchased a horse with the
proceeds of the drug conspiracy, and that the $14,873 represented the proceeds
from the sale of the horse. Id. at 38-39.
This court entered a Preliminary Order of Forfeiture on November 6,
2007. That Order states in part that, “[p]ursuant to Fed. R. Crim. P. 32.2(b)(3), this
Preliminary Order of Forfeiture shall become final as to the defendant at the time
of sentencing and shall be made part of the sentence and included in the
judgment.” Preliminary Order of Forfeiture at 3, Doc. No. 28 at 3.

3

In return for entering pleas of guilty to the three-count Information, the United States
agreed to dismiss an earlier filed Superseding Indictment against Diaz.
3

Diaz was sentenced on October 6, 2008. On that same date, the court
entered a Final Order of Forfeiture. Doc. No. 64. At that time, all “right, title and
interest” in the $14,873 vested in the United States. Id.
III. ANALYSIS
A.

Screening Standard
The court is required to screen complaints brought by prisoners

seeking relief against a governmental entity or an officer or an employee of a
governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint
if a plaintiff has raised claims that are legally frivolous or malicious, that fail to
state a claim upon which relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). If the
court determines that a pleading could be cured by the allegation of other facts, a
pro se litigant is entitled to an opportunity to amend a complaint before dismissal
of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en
banc).
The court may dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) if it fails to “contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
4

(2007)); see also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.
2008). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949 (citing
Twombly, 550 U.S. at 555). Rather, “[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.” Id. at 1949
(citing Twombly, 550 U.S. at 556).
Plaintiff is appearing pro se; consequently, the court liberally
construes his pleadings. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).
B.

The Complaint Is Dismissed Without Leave to Amend
Diaz claims that the $14,873 “was illegally seized by the DEA agents”

and it was his “understanding through defense counsel that the funds would be
returned to him. . . .” Motion for Return of Property at 2. Court records
conclusively prove, however, that the money was lawfully forfeited to the United
States, leaving Diaz with no possessory interest in the funds.
Federal Rule of Criminal Procedure 41(g) states in part that, “[a]
person aggrieved by an unlawful search and seizure of property or by the
deprivation of property may move for the property’s return.” “Absent a showing
that the individual requesting return of property under Rule 41[(g)] is entitled to its
5

lawful possession, the property may not be released to him.” United States v. Van
Cauwenberghe, 827 F.2d 424, 434 (9th Cir. 1987). A corollary rule necessarily
follows -- “[i]t is well-settled that the federal government may defeat a Rule
41[(g)] motion by demonstrating that the property is subject to federal forfeiture.”
United States v. Fitzen, 80 F.3d 387, 389 (9th Cir. 1996); see also United States v.
Van Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir. 1991).
Diaz’ knowing plea to the forfeiture of the $14,873 and the
subsequent Final Order of Forfeiture conclusively show that Diaz lacks any
possessory interest in the funds. They were lawfully forfeited, vesting the United
States with all right, title and interest in the funds.
The court therefore DISMISSES the Motion for Return of Property
for failure to state a claim. Because the funds that Diaz seeks have been lawfully
forfeited by the United States, this dismissal is “not caused by insufficient
allegations of factual content,” such that “no potential amendments would change
the outcome.” Mirmehdi v. United States, 662 F.3d 1073, 1082 (9th Cir. 2011). In
short, further amendment would be futile. Accordingly, the dismissal is without
leave to amend.
///
///
6

IV. CONCLUSION
For the reasons stated above, the court DISMISSES the Complaint
without leave to amend. The Clerk of Court is directed to close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 1, 2012.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Diaz v. United States, Cv. No. 12-00123 JMS/RLP, Cr. No. 06-00406 JMS; Order Dismissing
Complaint Without Leave to Amend

7