Garcia-Roman v. Great Bend Police Department

Filing 2

MEMORANDUM AND ORDER ENTERED: Plaintiff is given thirty (30) days to satisfy the filing fee herein by either paying the $350.00 fee in full or submitting a properly supported motion to proceed without prepayment of fees upon court-approved form s. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed for the reasons stated herein including failure to state a claim. Signed by Senior District Judge Sam A. Crow on 6/1/2012. (Mailed to pro se party Juan Carlos Garcia-Roman by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JUAN CARLOS GARCIA-ROMAN,
Plaintiff,
v.

CASE NO.

12-3078-SAC

GREAT BEND
POLICE DEPARTMENT,
Defendant.

MEMORANDUM AND ORDER
This civil complaint was filed pursuant to 42 U.S.C. § 1983 by
Juan Carlos Garcia, an inmate of the Dalby Correctional Facility,
Post, Texas.1

Mr. Garcia seeks an order requiring the Great Bend

Police Department (GBPD) or its unknown arresting officer to
release his “weapon” that was seized upon his arrest. Plaintiff is
required to satisfy the filing fee and to show cause why this
action should not be dismissed for failure to state a federal
constitutional violation and as time-barred.

1

Plaintiff has recently filed four civil complaints in this court.
In three he refers to himself as Garcia Roman, but in the fourth he calls himself
Garcia. In his 2007 criminal case he is referred to as Garcia, while in his 2010
case he is referred to as Garcia Roman. The clerk is directed to list all these
cases under both names to ensure accuracy of records relating to this person.
The court refers to plaintiff as Mr. Garcia in his currently pending cases. In
his petition to enter plea, Mr. Garcia stated that his “full true name is Juan
Carlos Garcia.” U.S. v. Garcia, 47-40069-01-SAC (Doc. 87)(D.Kan. February 20,
2008).

1

FILING FEE
The statutory fee for filing a civil action in federal court
is $350.00.

Mr. Garcia has not paid this fee.

Nor has he

submitted a motion for leave to proceed without prepayment of fees.
This action may not proceed unless and until plaintiff satisfies
the statutory filing fee in one of these two ways.
28 U.S.C. § 1915 requires that a prisoner seeking to bring an
action without prepayment of fees submit a motion together with an
affidavit described in subsection (a)(1), and a “certified copy of
the trust fund account statement (or institutional equivalent) for
the prisoner for the six-month period immediately preceding the
filing” of the action “obtained from the appropriate official of
each prison at which the prisoner is or was confined.”
§ 1915(a)(2).

28 U.S.C.

The clerk shall be directed to provide forms for

filing a proper motion under § 1915, and plaintiff is required to
utilize these forms if he submits such a motion.

If plaintiff does

not satisfy the filing fee by either paying the full amount or
submitting a properly supported motion within the time prescribed
by the court, this action may be dismissed without prejudice and
without further notice.
Mr. Garcia is forewarned that under 28 U.S.C. § 1915(b)(1),
being granted leave to proceed without prepayment of fees does not
relieve a plaintiff of the obligation to pay the full $350 fee.
Instead, it merely entitles him to pay the fee over time through

2

payments automatically deducted from his inmate trust fund account
as authorized by § 1915(b)(2).2

The filing fee of $350.00 must be

paid for each action filed.

FACTUAL BACKGROUND AND CLAIMS
The following allegations by plaintiff do not present a clear
factual background for this complaint.

On November 30, 2006, he

was arrested by an unknown officer of the GBPD.

“There was not

formally charge (sic),” and on November 27, 2006, he was “acquitted
under the grounds of insufficience (sic) of evidence.”

The GBPD

“failed

However,

to

pursue

forfeiture

proceedings

on

it.”

plaintiff also alleges that his weapon was “unlawfully forfeited”
after “dismissal of (his) criminal charges.”

He asks the court to

order “Great Bend” to release his weapon and pay for this civil
action as well as attorney fees.
In response to the question on his form complaint regarding
previous lawsuits and administrative remedies, plaintiff alleges
that he has not begun other lawsuits in state or federal court
dealing with the same facts, but has written “several letters” to
the GBPD requesting release of his weapon after he discovered their
failure to release it.

He does not exhibit these letters, or any

2
If plaintiff files a motion for leave to proceed without prepayment
of fees that is granted, then the Finance Office of the facility where he is
currently confined will be authorized pursuant to § 1915(b)(2) to collect twenty
percent (20%) of the prior month’s income each time the amount in plaintiff’s
account exceeds ten dollars ($10.00) until the filing fee has been paid in full.

3

response he may have received.

SCREENING
Because Mr. Garcia is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

1915(e)(2)(B).
A court liberally construes a pro se complaint and applies
“less

stringent

lawyers.”
pro

se

standards

than

formal

pleadings

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

litigant’s

“conclusory

allegations

without

drafted

by

However, a
supporting

factual averments are insufficient to state a claim upon which
relief can be based.”
Cir.

1991).

The

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th

court

“will

not

supply

additional

factual

allegations to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.”
F.3d 1170, 1173-74 (10th Cir. 1997).

Whitney v. New Mexico, 113
The court accepts all

well-pleaded allegations in the complaint as true.

Anderson v.

Blake, 469 F.3d 910, 913 (10th Cir. 2006). Nevertheless, “when the
allegations in a complaint, however true, could not raise a claim
of entitlement to relief,” dismissal is appropriate. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 558 (2007).

4

To avoid dismissal,

the complaint’s “factual allegations must be enough to raise a
right to relief above the speculative level,” and there must be
“enough facts to state a claim to relief that is plausible on its
face.”

Id. at 555, 570 (citation omitted).

The complaint must

offer “more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action.”

Id. at 555.

The court must always assure itself of its jurisdiction.

See

Image Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044,
1048

(10th

Cir.

independent

2006)(stating

obligation

to

that

determine

a

federal
whether

court
subject

has

an

matter

jurisdiction exists and may raise the issue at any stage in the
litigation).
Having screened the complaint, the court finds it is subject
to being dismissed for reasons that follow.

DISCUSSION
At the outset, the court finds that it appears from the face
of the complaint that this claim is barred by the applicable twoyear statute of limitations. Plaintiff alleges that his weapon was
taken in 2006.

The instant complaint was not filed within 2 years

of the accrual of plaintiff’s cause of action.
filed 6 years after the alleged taking.

Instead, it was

Plaintiff alleges that he

sought return of the weapon once he learned it had not been
returned.

However, he provides no dates or reasons why he was

5

unaware that his weapon was not returned.

He certainly does not

allege sufficient facts to establish that he is entitled to years
of tolling of the statute of limitations.

See Stone v. Whitman,

324 Fed.Appx. 726, 728 (10th Cir. 2009).
In addition, plaintiff fails to allege facts sufficient to
support a claim of federal constitutional violation.

Without a

doubt, a law enforcement officer may constitutionally seize a
weapon found in the possession of a person at the time of his
arrest.

Knowles v. Iowa, 525 U.S. 113 (1998); see also U.S. v.

Thomson, 354 F.3d 1197, 1200 (10th Cir. 2003); Palmer v. Unified
Government of Wyandotte County/Kansas City, Kansas, 72 F.Supp.2d
1237, 1249 (D.Kan. 1999). Generally, once criminal proceedings are
concluded seized property that belongs to the defendant and may
rightfully be possessed by him is returned.3

However, even if the

court accepts as true plaintiff’s allegations that his weapon has
been

unlawfully

retained,

constitutional violation.

he

fails

to

state

a

claim

of

Id. at 1249.

Plaintiff does not refer to any federal constitutional right
and assert that it was violated by defendant.

His allegations

of

a loss of personal property, might be liberally viewed as a claim

3
Pursuant to K.S.A. § 22–2512(1), “[p]roperty seized under a search
warrant or validly seized without a warrant shall be safely kept by the officer
seizing the same unless otherwise directed by the magistrate, and shall be so
kept as long as necessary for the purpose of being produced as evidence on any
trial.” Plaintiff does not allege facts from which it can be determined that
this weapon was being held as evidence or simply for the obvious reason that a
detainee is not allowed to possess a weapon while in jail.

6

of deprivation of property without due process.

However, Mr.

Garcia does not allege that he has filed any motion in the
appropriate state district court regarding his weapon.4

Such a

motion was the first step he should have taken to seek return of
seized property.5

If he filed a motion that was denied, and simply

disagrees with the ruling of the state court, his recourse was to
appeal the district court’s ruling to the Kansas Court of Appeals
and ultimately to the Kansas Supreme Court.
If Mr. Garcia is suggesting that his weapon was improperly
retained by the arresting officer or some other employee of the
GBPD acting outside valid state or county process, then he does not
allege sufficient factual allegations in support.

Furthermore,

such a claim would clearly involve the sort of random taking of Mr.
Garcia’s

property,

impracticable.

for

which

pre-deprivation

due

process

is

It follows that his recourse would be the post-

deprivation remedies that are available in the state court.6

4
Nor does plaintiff allege facts showing that he had the legal right
to possess this weapon after this arrest. The court notes from plaintiff’s four
pending cases that Mr. Garcia faced various state and federal criminal charges
in 2006 and 2007 and was ordered deported. Federal law bars illegal immigrants
from possessing firearms.
See U.S. v. Huitron-Guizar, ___F.3d __, 2012 WL
1573565 (10th Cir. 2012).
5
In federal court, a defendant may file a motion pursuant to
Fed.R.Crim.P. Rule 41(g) for return of property seized in a criminal case.
Plaintiff filed such a motion in a federal case. Many states have provisions
comparable to Rule 41(g).
6

As Mr. Garcia was informed in his other pending cases, when a
plaintiff alleges deprivation of a property interest occurring as a result of “a
random, unauthorized act,” the Fourteenth Amendment’s due process requirement is
satisfied if the state provides an adequate post-deprivation remedy. Parratt v.
Taylor, 451 U.S. 527, 541-43 (1981), overruled on other grounds by Daniels v.
Williams, 474 U.S. 327, 330 (1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984);

7

It also follows that Mr. Garcia fails to state a federal
constitutional claim. Due process is not violated unless and until
the State fails to provide adequate post-deprivation remedies for
an illegal taking of property.

Here, plaintiff states that he has

not pursued any state remedies to recover his weapon.

Thus, he

cannot show that such remedies have been inadequate.
The

court

concludes

that

plaintiff’s

complaint

does

not

include “enough facts to state a claim to relief that is plausible
on its face.”

Twombly, 550 U.S. at 555, 570.

Plaintiff is given

time to show cause why this action should not be dismissed as timebarred and for failure to state a cognizable claim under 42 U.S.C.
§ 1983.

If he fails to show cause within the time allotted, this

action will be dismissed under 28 U.S.C. § 1915A(a) and (b); 28
U.S.C. § 1915(e)(2)(B).

It will therefore count as a “prior

occasion” or strike under 28 U.S.C. § 1915(g).7

Zinermon v. Burch, 494 U.S. 113, 128 (“Parratt and Hudson represent a special
case . . . in which postdeprivation tort remedies are all the process that is
due, simply because they are the only remedies the State could be expected to
provide.”).
7

Section 1915(g) of 28 U.S.C. provides:

In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court
that is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger
of serious physical injury.
Id. Should Mr. Garcia acquire three strikes, he will be required to “pay up
front for the privilege of filing . . . any additional civil actions” in federal
court unless he can show “imminent danger of serious physical injury.” 28 U.S.C.
1915(g); Jennings v. Natrona County Detention Center, 175 F.3d 775, 778 (10th
Cir. 1999).

8

IT IS THEREFORE BY THE COURT ORDERED that plaintiff is given
thirty (30) days to satisfy the filing fee herein by either paying
the $350.00 fee in full or submitting a properly supported motion
to proceed without prepayment of fees upon court-approved forms.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to show cause why this action should not be
dismissed for the reasons stated herein including failure to state
a claim.
The clerk is directed to send plaintiff forms for filing a
motion to proceed without prepayment of fees together with a copy
of this Order.
The clerk is also directed, if appropriate, to record this
case as filed by a party named Garcia as well as Garcia-Roman.
IT IS SO ORDERED.
Dated this 1st day of June, 2012, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

9