Garcia v. Trubey et al

Filing 2

MEMORANDUM AND ORDER ENTERED: Plaintiff is given thirty (30) days from the date of this order in which to either pay the $350.00 filing fee in full or submit a properly supported motion to proceed without prepayment of fees upon court-approved forms. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed for all the reasons stated herein including failure to state a federal constitutional claim. Signed by Senior District Judge Sam A. Crow on 6/5/2012. (Mailed to pro se party Juan Carlos Garcia by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JUAN CARLOS GARCIA,
Plaintiff,
v.

CASE NO.

12-3095-SAC

MARILYN M. TRUBEY,
et al.,
Defendants.
MEMORANDUM AND ORDER
This civil complaint was filed pursuant to 42 U.S.C. § 1983
by

Juan

Carlos

Garcia,

Facility, Post, Texas.1

an

inmate

of

the

Dalby

Correctional

Mr. Garcia seeks the return of property

seized during a criminal investigation on June 13, 2007, as well as
recovery for damage to his homes and vehicles during the search.
He asserts that the seized property was forfeited without notice.
Plaintiff is required to satisfy the filing fee and to show cause
why

this

action

should

not

be

dismissed

on

several

grounds

including failure to state a federal constitutional claim against
the defendants and expiration of the statute of limitations.

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, 07-40069-01-SAC (Doc. 87)(D.Kan. February 20,
2008).

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 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 fee or
submitting a properly supported motion within the time allotted,
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 $350.00 fee
for each civil case that he files in federal court.

Instead, it

merely entitles him to pay the fee over time through payments
automatically deducted from his inmate trust fund account as
2

authorized by § 1915(b)(2).2

FACTUAL BACKGROUND AND CLAIMS
Plaintiff

filed

this

lawsuit

pursuant to 42 U.S.C. § 1983.
§

983(e)3

give

this

court

on

forms

for

an

action

However, he asserts that 18 U.S.C.
jurisdiction,

which

provides

for

challenges to civil forfeitures on lack of notice grounds.

The

following allegations by plaintiff do not present a clear factual
background.

In 2008, after his arrest on federal charges in 2007,

plaintiff’s

property

was

forfeiture proceeding.”4

the

“subject

of

a

federal

judicial

“The U.S. did not proceed with judicial

forfeiture pursuant to 21 U.S.C. § 853 of the specific property
seized” from plaintiff.

The U.S. failed to follow 18 U.S.C. §§

981(a)(1)(c), 983, and 985, 21 U.S.C. § 853, and 28 U.S.C. §

2
If plaintiff files a motion for leave 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
Plaintiff does not provide the content of this provision or explain
how it establishes jurisdiction. 18 U.S.C. § 983 contains the “general rules for
civil forfeiture proceedings.” Subsection (e) “Motion to set aside forfeiture”
pertinently provides: “Any person entitled to written notice in any nonjudicial
civil forfeiture proceeding under a civil statute who does not receive such
notice may file a motion to set aside a declaration of forfeiture with respect
to that person’s interest in the property, which motion shall be granted” under
the circumstances set forth therein.” Subsection (f)(5) provides that “a motion
filed under this subsection shall be the exclusive remedy for seeking to set
aside a declaration of forfeiture under a civil forfeiture statute.” Plaintiff
does not allege that he filed a “motion to set aside forfeiture,” in the court
that conducted a forfeiture proceeding.
4
Plaintiff baldly refers to this judicial forfeiture proceeding as
“federal”. However, he alleges no facts indicating that the search and seizure
of which he complains was done at the direction of federal authorities or in
connection with his federal criminal prosecution.
Nor does he allege facts
showing that the property in question was the subject of a forfeiture proceeding
conducted in federal court.

3

2461(c).5

Plaintiff was not given notice of forfeiture or of

“forfeiture proceedings,” there is no proof that he received
notice, he did not sign any notice, he was not given paperwork
outlining the forfeiture process, and was not sent a copy of the
“property executed forfeiture.” “The U.S. failed to publish for 30
consecutive days on the government’s forfeiture, notice of the
court’s order and the U.S. intent to dispose of the properties in
such manner as the Attorney General may direct, pursuant to 21
U.S.C. § 853(n)6 and Rule G(4).”

The property was seized from

plaintiff’s residences at the time they were searched and consisted
of jewelry, electronic items, titles to property, and computers.
Plaintiff

also

claims

there

was

damage

to

his

“houses

and

vehicles,” which he has “informally calculated” as in the amount of
$25,000.
The court takes judicial notice of the case files in United
States

v.

Juan

Carlos

Garcia

Roman,

No.

10-10065-01-MLB

(hereinafter 2010 case) and United States v. Juan Carlos Garcia,
No. 07-40069-01-MLB (hereinafter 2007 case).

Orders entered in

these criminal cases together with plaintiff’s allegations and

5

Again, plaintiff fails to describe the content of these statutes and
explain how defendants violated each provision.
18 U.S.C. §§ 983, 985, and
981(a)(1)(c) relate to civil forfeiture.
21 U.S.C. § 853 governs criminal
forfeitures. 28 U.S.C. § 2461(c) provides that if a person is criminally charged
with a violation for which the civil or criminal forfeiture of property is
authorized, the Government may include notice of the forfeiture in the indictment
and, if the defendant is convicted, the court “shall order the forfeiture of the
property as part of the sentence.”
6

Plaintiff does not provide the pertinent wording of this statute and
explain how it was applied by defendants in his case. 21 U.S.C. § 853 provides
for notice to persons who may have a third party interest in the property. The
court is not aware of a Rule G(4), and plaintiff does not hint at its source or
content.

4

exhibit and the opinion of the Tenth Circuit in U.S. v. GarciaRoman, 2012 WL 1130646, *1 (10th Cir. Apr. 5, 2012) provide the
following additional factual background.
The file in Garcia’s 2007 criminal case shows that he was
arrested in June 2007.

In July 2008, he pled guilty and was

sentenced to time served, and it was noted that he was subject to
an ICE detainer.

Id. (Doc. 115).

On August 4, 2008, defense attorney Trubey filed a Motion
for Return of Property (Doc. 116) on behalf of Mr. Garcia in his
2007

case

pursuant

to

Fed.R.Crim.P.

41(g)

seeking

an

order

directing the government to “return all non-contraband items of
property which were seized from Mr. Garcia.”

In support of this

motion, it was stated that “a number of personal items were seized
from the vehicle Mr. Garcia was driving on May 3, 2007, from his
person, and from his home” that were not contraband.

The items

were said to include but not be limited to: (1) ownership documents
for

horses,

(2)

Play

Station

system

and

games,

(3)

plasma

television, (4),(5) gold jewelry, (6) papers and photographs, (7)
two wallets and (8) two cell phones.

The government filed a

“Response to Motion for Property Return” (Doc. 118), in which it
reported, from inquiries it made, that items (2)-(5) and (8) “were
sold by the Kansas Department of Revenue for non-payment of Kansas
Drug Tax Stamps;” items “held by the Barton County Sheriff’s
Department and the KBI were destroyed, including some documents and
a cell phone;” and the only other agency with some of Garcia’s
documents

was

the

Great

Bend

Police
5

Department,

which

the

government had no objection to “those items being forwarded to
Trubey. On August 20, 2008, counsel for Garcia and counsel for the
government took part in a phone conference before the court, which
was transcribed.

The transcript of this hearing reflects that

defense counsel Trubey stated she had “received on Mr. Garcia’s
behalf his wallet and certain documents,” and had been informed
that “the other items that were requested in our motion either were
never in the custody of law enforcement or have been sold to pay
the . . . state drug tax or have been returned to his family.”
(Doc. 177-1) at 2.
that response.”

Id.

She also stated, “So, we are satisfied with

The courtroom minute sheet (Doc. 121) indicates

that the court heard statements of counsel, the defendant was
“satisfied,” and government counsel was to prepare an order.
On August 22, 2008, Mr. Garcia was deported to Mexico. See
U.S. v. Garcia-Roman, 10-mj-06048-DWB-1, Complaint (Doc. 1) at 3
(4/13/2010).

In his 2010 case, Mr. Garcia pled guilty in federal

court to reentry after deportation and admitted to violation of his
supervised release in his 2007 case.

The federal district court

sentenced him to forty-six months of incarceration on the unlawful
reentry conviction, and a consecutive eight-month sentence for the
supervised release violation, for a total term of fifty-four
months.
In August 2011, Mr. Garcia filed a pro se motion in his
2007 case seeking an order citing the government for contempt “for
failing to return personal items such as jewels to defendant.”
2007 Case (Doc. 166).

In November 2011, he filed a pro se Motion
6

for Court Order Compelling Production of Defendant’s Property (Doc.
170)

pursuant

to

Fed.R.Crim.P.

41(g)

and

requiring

the

U.S.

Attorney’s Office to turn over “the property seized during the
executio of his arrest.”

He cited 18 U.S.C. § 981(a)(1)(c), 28

U.S.C. § 2461(c), and Fed.R.Crim.P. 32.2.7

The property was

described as “several electric items, jewels and legal documents.”
The court was asked to enter judgment against the government for
“the amount of the price of the property seized.”
The government obtained a transcript of Garcia’s prior
41(g) hearing and filed a Response (Doc. 177) with that transcript
attached.

They alleged that a “virtually identical motion” had

been filed in the case on August 4, 2008, the court heard the
motion, and “defendant, through his lawyer, told the court he was
satisfied with the government’s response that the property in
question

had

been

properly

disposed

of.”

The

government

acknowledged that no order had been prepared, which was why none
appeared in the record. They argued that the motion was repetitive
and should be denied.

In addition, they argued that if defendant

had disagreed with the court’s ruling on his prior 41(g) motion, he
could have filed a motion for reconsideration or a notice of

7
Garcia’s allegations in support of this motion, including the
following, are not at all clear. “On June 13, 2007, an indictment was returned,”
which did not seek forfeiture to the United States of “certain property pursuant
to” cited sections. On February 20, 2008, a guilty plea was entered to a few
counts of the indictment “thereby failing to make certain property subject to
forfeiture pursuant to the law.” “Defendant did not waive his right to have the
forfeiture allegations in the indictment considered by the plea.” The parties
did not agree that the court would decide whether certain property belonging to
defendant was subject to forfeiture to the U.S. The United States failed, before
or at sentencing to request that the court enter a preliminary order of
forfeiture against defendant for a judgment of personal property seized during
execution of the search warrant of his residences.

7

appeal.

They further argued that Mr. Garcia’ motion failed under

Rule 41(g) because he had not shown irreparable harm and inadequate
remedy at law.

On December 15, 2011, the judge entered a brief

order (Doc. 178) denying this motion “for the reasons set forth in
the government’s (response),” referencing Doc. 177.

Mr. Garcia

filed a notice of appeal of this Order in the Tenth Circuit Court
of Appeals (Doc. 179).

The appeal was dismissed on May 3, 2012

(Doc. 184), on account of Garcia’s failure to prosecute.
Mr. Garcia is currently in federal custody with a projected
date of removal to Mexico of March 2014.
The court is asked to order the named defendants to return
his property, pay him $25,000, and pay for the costs of this action
including attorney fees.
Plaintiff alleges that he has not begun any other lawsuits
in state or federal court dealing with the same facts as in this
action.

In

response

to

the

question

on

his

form

complaint

regarding administrative remedies, plaintiff alleges that he filed
a motion for return of property with the district court that was
denied and “a complaint with the State Bar seeking reimbursement.”

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)
8

and

(b);

28

U.S.C.

§

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

stringent

lawyers.”

standards

Erickson

v.

than

formal

Pardus,

551

pleadings
U.S.

drafted

89,

94

by

(2007).

Nevertheless, a pro se litigant’s “conclusory allegations without
supporting factual averments are insufficient to state a claim upon
which relief can be based.”
(10th Cir. 1991).

Hall v. Bellmon, 935 F.2d 1106, 1110

The court “will not supply additional factual

allegations to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.”

Whitney v. New Mexico, 113

F.3d 1170, 1173-74 (10th Cir. 1997).

To avoid dismissal, the

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

Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)(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

accepts all well-pleaded allegations in the complaint as true.
Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006).

Having

screened all materials filed, the court finds the complaint is
subject to being dismissed for the following reasons.

DISCUSSION
The defendants named by plaintiff are Assistant Public
Defender Marilyn Trubey, Garcia’s appointed defense counsel and
Assistant

United

States

Attorney

(AUSA)

Brent

Anderson,

prosecutor in Garcia’s 2007 federal criminal case.
9

a

Plaintiff

alleges that Trubey was acting under color of state law and “is an
attorney who was enforcing state and federal law at the time he
committed the offense.”

He alleges that Anderson was also acting

under color of state law and “was proceeding (sic) a forfeiture in
the State of Kansas, therefore, should be at least relying on State
law.”
The court finds that these two defendants are generally not
amenable to suit for money damages under 42 U.S.C. § 1983 or 28
U.S.C. § 1331.8

“To state a claim under section 1983, a plaintiff

must allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state
law.”

West

v.

Atkins,

487

U.S.

42,

48-49

(1988)(citations

omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir.
1992).

Contrary to plaintiff’s allegation, a public defender is

generally held not to have acted under color of state law.

In Polk

County v. Dodson, 454 U.S. 312 (1981), the Supreme Court held that
a public defender, although paid and ultimately supervised by the
state, does not act under color of state law under § 1983, the
statutory counterpart to a Bivens claim, when performing the
traditional functions of defendant’s counsel during a criminal

8
Plaintiff’s constitutional claims, if any, might be construed as
brought under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403
U.S. 388, 389 (1971), because Mr. Garcia is a federal prisoner. To state a claim
under Bivens, a plaintiff must show (1) a deprivation of a right secured by the
Constitution and laws of the United States; and (2) that the deprivation of the
right was caused by an official acting under color of federal law. See, e.g.,
Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155–56 (1978).

10

proceeding.

The holding in Polk County applies equally to federal

public defenders.

See, e.g., Cox v. Hellerstein, 685 F.2d 1098,

1099 (9th Cir. 1982)(affirming dismissal of Bivens action against
assistant federal defender for providing ineffective assistance
because “[i]f a public defender does not act under color of state
law in representing an indigent defendant in a state criminal
proceeding, it follows that a public defender does not act under
color of federal law in performing the identical functions as a
lawyer to an indigent defendant in a federal criminal proceeding”);
Richards v. Flynn, 263 Fed.Appx. 496 (7th Cir. 2008)(unpublished
and cited for legal reasoning only)(affirming sua sponte dismissal
of Bivens action for legal malpractice brought against assistant
federal defender because criminal defense attorney does not act
under

color

of

federal

law

and

assignment

of

a

strike).

Accordingly, plaintiff’s claims against defendant Trubey appear to
be legally frivolous.
Federal prosecutors are entitled to absolute immunity in §
1983 and Bivens-type suits for activities within the scope of their
prosecutorial duties.

See Imbler v. Pachtman, 424 U.S. 409, 418-

19, 420–24 (1976)(A prosecutor, acting within the scope of his or
her duties, has absolute immunity from liability for damages under
§ 1983); see also Butz v. Economou, 438 U.S. 478, 504 (1978);
Nielander v. Board of County Com’rs of County of Republic, Kan.,
582 F.3d 1155, 1164 (10th Cir. 2009).

Mr. Garcia describes no acts

or omissions by defendant AUSA Anderson that were not “intimately
associated with the judicial process.”
11

See Snell v. Tunnell, 920

F.2d

673,

686

(1991)(quoting
plaintiff’s

(10th

Cir.

Imbler,

claims

1990),

424

U.S.

against

cert.
at

denied,

430).

defendant

It

Anderson

499

U.S.

follows
are

976
that

legally

frivolous.
Even if the two named defendants could be sued here for
money damages or injunctive relief, plaintiff does not allege
sufficient facts to show their personal participation in the
alleged unconstitutional acts, which is an essential element of his
claims. He does not allege that either defendant ever possessed or
had control over the property in question.9

Nor does he describe

acts by either defendant indicating that she or he actually caused
the seizure or forfeiture of his property.

Moreover, plaintiff

does not allege the personal participation of either defendant in
acts that allegedly caused property damage during the searches of
his residences and automobile.
Furthermore, the order of the federal district court in Mr.
Garcia’s 2007 criminal case denying his 41(g) motion for return of
seized property precludes him from relitigating his claims before
this federal district court.10 Garcia’s 41(g) motion was considered
9

Plaintiff does not allege facts indicating that the property he seeks
to recover was ever turned over to a Federal law enforcement agency for the
purpose of forfeiture under Federal law. There are “some limited circumstances
in which Rule 41(g) can be used” to seek return of property seized by state
authorities. “Those circumstances include actual federal possession of the
property forfeited by the state, constructive federal possession where the
property was considered evidence in the federal prosecution, or instances where
property was seized by state officials acting at the direction of federal
authorities in an agency capacity.” U.S. v. Copeman, 458 F.3d 1070, 1071 (10th
Cir. 2006). None of these circumstances is alleged in this case.
10
“It is well established that a court may raise the issue of
preclusion on its own motion in appropriate cases.” See Burrell v. Armijo, 456
F.3d 1159, 1176 (10th Cir. 2006), cert. denied, 549 U.S. 1167 (2007)(citing
cases); see also United States v. Hauk, 412 F.3d 1179, 1185 (10th Cir. 2005).

12

and denied.

He failed to appeal the denial.

He later filed a

second Rule 41(g) motion regarding this property, which was denied
as repetitive.
In

He failed to prosecute his appeal of this ruling.

addition,

plaintiff

constitutional deprivation.

fails

to

state

a

claim

of

Nowhere in his complaint does he even

assert the violation of a constitutional right. Instead, he claims
that

the

government

failed

to

adhere

to

federal

forfeiture

statutes. Even if the court liberally construed his allegations as
a claim of deprivation of property without due process, he fails to
state a federal constitutional claim. It is clear from plaintiff’s
allegations, exhibits, and the records in his criminal cases that
he was afforded due process with regard to the federal government’s
alleged taking of property in connection with his 2007 federal
criminal case.
the

property

He was informed in his Rule 41(g) proceeding that
he

sought

was

not

in

the

custody

of

federal

authorities.11
If Mr. Garcia’s property was improperly taken and held or
disposed of by state or local authorities acting only upon their
own authority, he likewise fails to state a federal constitutional
claim. As Mr. Garcia has been informed in his other pending cases,

11

In the government’s response to plaintiff’s first Rule 41(g) motion,
the judge and defendant’s counsel were advised that several items were sold by
the Kansas Department of Revenue, items held by the Barton County Sheriff’s
Department and the K.B.I. were destroyed, and that the Great Bend Police
Department held some of defendant’s documents. In his 2007 case, Doc. 77 is the
transcript of a hearing on his motion to suppress evidence seized in searches.
This motion concerned drugs, drug buy money, scales, and packing materials; not
the personal property sought in the instant action. The transcript includes
testimony of a KBI special agent who had been involved in a years-long
investigation of Garcia in Great Bend and had provided probable cause in
affidavits to the issuing magistrate in order to obtain search warrants.

13

Kansas clearly

provides

adequate

post-deprivation

remedies

to

persons who believe they have suffered a tortious loss at the hands
of state or local officials, and where the State provides an
adequate remedy, that remedy itself constitutes the due process
required by the Fourteenth Amendment.

Plaintiff’s allegations

indicate that he has not utilized the state court remedies that are
available.12
remedies

are

They in no way suggest that the available state-court
ineffective.

The

court

finds

no

other

fact

allegations in the complaint, which liberally construed, amount to
a federal constitutional violation under 42 U.S.C. § 1983.
Finally, the court notes that according to plaintiff’s
allegations in the complaint, the alleged property deprivations and
damages for which he seeks compensation occurred in May 2007.
These claims, whether considered under Bivens or the FTCA, are
barred by the applicable two-year statute of limitations.
In sum, the court finds that the named defendants are not
amenable to

suit

herein, and

that

plaintiff fails

to

allege

sufficient facts to state a federal constitutional claim for
reasons including that adequate post-deprivation remedies were
available. 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 544.

Plaintiff is given time to show cause why this action

12

Plaintiff does not show that he filed a motion in the state district
court that issued the seizure warrant for return of property seized or any motion
in the state district court in which state forfeiture proceedings may have been
conducted. He does not allege that he has filed any sort of tort claim in state
court, and instead alleges that he has filed no state action.

14

should not be dismissed for all the reasons stated herein.

If he

fails to show good cause within the time allotted, this action may
be dismissed without further notice.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is
given thirty (30) days from the date of this Order in which to
either pay the $350.00 filing fee in full or submit a properly
supported motion to proceed without prepayment of fees upon courtapproved 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 all the reasons stated herein including
failure to state a federal constitutional 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, and to record this case under plaintiff’s name as
Garcia and as Roman Garcia.
IT IS SO ORDERED.
Dated this 5th day of June, 2012, at Topeka, Kansas.

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

15