Perez-Jacome v. United States of America et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted to and including January 18, 2013, to submit the filing fee or a motion for leave to proceed in forma pauperis. On or before January 13, 2013, the plaintiff shall show cause why this matter should not be dismissed for failure to state a claim upon which relief may be granted. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. Signed by Senior District Judge Sam A. Crow on 12/19/2012. (Mailed to pro se party Alberto Perez-Jacome by regular mail.) (smnd) (Additional attachment(s) added on 12/19/2012: # 1 Published Notices) (smnd).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ALBERTO PEREZ-JACOME,
Plaintiff,
v.

CASE NO. 12-3205-SAC

UNITED STATES OF AMERICA, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a Bivens 1 -type civil rights action filed by a
prisoner in federal custody. Plaintiff proceeds pro se. Because he
has submitted neither the $350.00 filing fee nor a motion to proceed
in forma pauperis, the court will direct him to submit either the fee
or that motion.
Screening
The federal court is required to conduct a preliminary review
of any case in which a prisoner seeks relief from a governmental entity
or an officer of employee of such an entity. See 28 U.S.C. § 1915A(a).
The court must dismiss any part of the complaint it determines is
frivolous, malicious, fails to state a claim for relief, or seeks
monetary damages from a defendant who is immune from that relief. See
28 U.S.C. §1915A(b).
Background
The complaint states that on January 11, 2006, DEA agents
searched plaintiff’s residence in Kansas City, Kansas, and his
vehicle. Agents seized approximately $14,000.00 in U.S. currency
1

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).

incident to the search. Plaintiff subsequently was convicted of
various drug crimes, and the conviction was affirmed on appeal. United
States v. Perez-Jacome, 356 Fed. Appx. 212, 216 (10th Cir. 2009). He
states there were no judicial forfeiture proceedings and that he did
not receive notice of any nonjudicial forfeiture. He seeks the return
of the currency seized, compensation for the loss of his vehicle, and
the costs of this action.
The court takes judicial notice that before commencing this
action, plaintiff unsuccessfully sought the return of the vehicle2 and
a portion of the currency seized by filing a motion pursuant to Fed.
R.Crim.P. 41(g). United States v. Perez-Jacome, 2012 WL 3245452 (D.
Kan. 2012).

Discussion
Plaintiff seeks relief from the forfeiture of seized currency
and assets on the ground he did not receive notice.
Currency and assets traceable to drug trafficking are subject
to federal government forfeiture made through a civil action. 18
U.S.C. § 981. The Civil Asset Forfeiture Reform Act of 2000 (CAFRA)
establishes the procedures for forfeiture actions begun after August
23, 2000. 18 U.S.C. § 983.
The statutory provisions of the CAFRA are “the exclusive remedy
for seeking to set aside a declaration of forfeiture under a civil
forfeiture statute.” 18 U.S.C. § 983(e)(5). It is settled that
Congress may deprive the federal courts of their equitable remedy
2

In that action, plaintiff’s claim concerning the seizure of his vehicle was
dismissed. The government argued that the vehicle was never seized, and the court
found no evidence had been presented by the plaintiff. Because the court will enter
an order to show cause in the present action on other grounds, no additional
discussion of the vehicle is warranted.

jurisdiction by creating a comprehensive enforcement framework with
an exclusive remedy provision. Conard v. U.S., 470 Fed. Appx. 336,
(5th Cir. 2012)(citing United States v. Babcock, 250 U.S. 328, 331
(1919)(“where a statute creates a right and provides a special remedy,
that remedy is exclusive”)).
The CAFRA remedy provides that “[a]ny person entitled to written
notice in any nonjudicial civil forfeiture proceeding under a civil
forfeiture statute who does not receive such notice may file a motion
to set aside a declaration of forfeiture….” 18 U.S.C. § 983(e)(1).
Such a motion must be filed within five years from the date of the
final publication of the seizure notice. See 18 U.S.C. § 983(e)(3).
The court notes that the final notices of the seizures relevant
to this matter were published in the Wall Street Journal on June 26,
2006.3
Having

examined

the

complaint

and

having

considered

the

materials presented in the plaintiff’s criminal case, the court is
considering the dismissal of this matter for failure to state a claim
for relief. First, the motion remedy under CAFRA is the exclusive
remedy provided; second, even if plaintiff’s pleading might be
liberally construed as an appropriate motion, the matter is not
timely. The notices were presented in June 2006, and the present action
was filed in September 2012, over six years later, outside the
limitation period.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including January 18, 2013, to submit the filing fee or a motion
for leave to proceed in forma pauperis.
3

The published notices to plaintiff were documented in Case No. 06-20021-JWL, United
States of America v. Perez-Jacome, Doc. 714, p. 2. Copies of the relevant pages,
showing the publication date and the two entries under plaintiff’s name, are
attached.

IT IS FURTHER ORDERED that on or before January 13, 2013, the
plaintiff shall show cause why this matter should not be dismissed
for failure to state a claim upon which relief may be granted. The
failure to file a timely response may result in the dismissal of this
matter without additional prior notice.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 19th day of December, 2012, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge